SIR    HENRY    MAINE 


—  .(^<-fi'_<i7c<?/V^/z<^.-? 


H.    /    fUfiA^ 


SIR     HENRY     MAINE 

- —  ^.    ' '  ■ 

A   BRIEF    MEMOIR   OF   HIS    LIFE 

BY   THE    RIGHT    HON. 

SIR    M.  E.  GRANT    DUFF,  G.C.S.L 


WITH    SOME    OF    HIS    INDIAN    SPEECHES    AND    MINUTES 

SELECTED    AND    EDITED    BV 

WHITLEY    STOKES,  D.C.L. 

MEMBER   OF   THE    INSTITUTE    OF    FRANCE,    AND    FORMERLY    LAW-MEMBER 
OF   THE   COUNCIL   OF   THE   GOVERNOR-GENERAL  OF    INDIA 


WITH     PORTRAIT 


NEW     YORK 
HENRY     HOLT     &     CO. 


M33 


CONTENTS 


PAGE 

Mkmoir        .  .  .  .  , I 


SPEECHES 

Fraudulent  Breaches  of  Contract     85 

Divorce 91 

Emigration 114 

Whipping 120 

Official  Trustees 126 

Registration  of  Documents 128 

Re-marriage  of  Native  Converts 130 

Specific  Performance  of  Contracts 164 

Minute  on  the  same  Subject 170 

Abolition  of  Grand  Juries 179 

Law  of  Succession 192 

Small  Cause  Courts 209 

Partnership  'en  Commandite' 21S 

Over-legislation 227 

Minute  on  the  same  Subject 237 

Judicial  Taxation 247 

Murderous  Outrages  in  the  Panjai! 259 

Indian  Municipalities 263 

Panjab  Tenancy 268 

Civil  Marriage  of  Natives         .        .        .        .        .        .        .  285 

Evidence 294 


[6]  MEMOIR    OF    SIR    IIENRV   MAINE 

MINUTES 

PAGE 

Suspension  and  Remissions  of  Sentence 301 

Servitude  in  Oudh 305 

Legal  Education  of  Civii.  Servants 308 

Small  Cause  Courts 311 

The  Kathiawar  States  and  Sovereignty 320 

The  Educationat,  Service 325 

Civil  Liability  of  Military  Officers 327 

Mr.  Prinsep's  Panjab  Theories 335 

Irrigation-Works  and  Railways  341 

The  Judge  Advocate  General 349 

Decentralisation  of  Finance 354 

Salt  Duties 358 

Draft  of  Despatch  resulting  in  Stat.  2)1)  Vic.  c.  3        .    .  360 

The  Bengal  Legislature 362 

Government  of  Bengal 372 

Simla  and  Calcutta 378 

Indian  Universities 384 

Cashmere  :  Succession  of  Collaterals 391 

Right  to  cede  by  Sanad  portions  of  British  India  .  .  395 
Right  of  Native  States  to  try  Europeans  ....  400 
Selection   and   Training  of    Candidates  for   the   Indian 

Civil  Service 402 

Memorandum  on  Mr.  Caird's  Report  on  the  Condition  of 

India 412 

Study  of  Persian 431 

INDEX      . 435 


MEMOIR 

OF 

SIR    HENRY    MAINE 


It  has  been  thought  desirable  that  a  sketch  of  Sir  Henry- 
Maine,  somewhat  fuller  than  the  notices  which  appeared  after 
his  death,  should  be  prefixed  to  this  volume. 

His  was  a  life  which  contained  but  few  incidents.  He 
was  never  connected  with  great  affairs,  save  in  India  and  at 
the  India  Office,  and  the  great  affairs  with  which  he  was 
connected  were  not  of  a  kind  to  attract  the  attention  of  even 
well-informed  readers  who  are  not  specially  interested  either 
in  the  country  to  which  he  gave  so  much  of  his  thoughts,  or  in 
legal  history  and  jurisprudence.  His  only  adequate  monument 
is  to  be  found  in  his  works.  A  life  of  him  of  the  regulation 
size  could  no  doubt  be  compiled  according  to  the  regulation 
fashion  ;  that  is,  by  stringing  together  great  numbers  of 
his  letters  to  various  official  personages  at  home  or  in  India 
when  he  was  serving  at  Calcutta  or  Simla  ;  but  they  would 
not  be  of  any  general  interest,  and  he  was  far  from  being  much 
given  to  writing  letters,  either  for  the  pleasure  of  doing  so  or 
for  the  purpose  of  keeping  up  relations  with  private  friends. 

The  objections  which  militate  against  attempting  to  write 
a  regular  life  of  Maine  do  not  seem  to  me  to  have  any  bearing 
upon  a  brief  memoir,  intended  merely  to  put  on  record  the 
principal  dates  and  facts  in  the  life  of  a  man  whose  writings 
have   been  an   honour  to  his   age,  and  who   did   admirable 

B 


c^J^ 


2  MEMOIR   OF   SIR   HENRY   MAINE 

service  to  the  State  ;  who  had  no  enemies,  and  who  has  left 
on  the  minds  of  all  those,  who  had  the  privilege  of  knowing 
him  well,  an  absolutely  unclouded  memory. 

Henry  James  Sumner  ]\Iaine  was  the  son  of  Dr.  James 
Maine,  who,  himself  a  native  of  Kelso,  on  the  Scottish  Border, 
married  Eliza,  the  fourth  daughter  of  Mr.  David  Fell,  of 
Caversham  Grove,  a  gentleman  of  good  position  residing  in 
the  neighbourhood  of  Reading.  He  was  born  near  Leighton 
on  August  15,  1822,  and  spent  his  very  earliest  years  in 
Jersey  ;  but  family  difficulties  soon  supervening,  he  was 
removed  to  England,  and  was  brought  up  thenceforth  ex- 
clusively by  his  mother,  a  clever  and  accomplished  woman, 
who  resided  chiefly  at  Henley-on-Thames. 

Some  recollections  of  his  childhood  have  been  preserved 
by  an  aged  relative,  and  have  been  kindly  communicated  to 
me.  They  bring  before  us  a  pretty  child  of  two  years  old, 
with  fair  wavy  hair  and  blue  eyes.  They  preserve,  too,  the 
fact  that  he  was  all  but  poisoned  at  that  early  period  of  life 
by  an  overdose  of  opium,  administered  by  his  doting  mother 
and  an  equally  devoted  aunt.  As  Fate  destined  him  to  have 
so  much  to  do  with  the  Government  of  India,  it  was  fortunate 
that  he  retained  no  grudge  against  the  poppy.  This  alarming 
event  occurred  at  Caversham  Grove.  We  next  hear  of  him 
at  a  school  kept  by  a  Mrs.  Lamb,  who  had  long  been 
governess  in  the  Fell  family,  and  resided  after  her  marriage 
in  the  Fair  Wile,  in  Henley. 

In  1829  his  godfather.  Dr.  Sumner,  then  Bishop  of  Chester, 
and  later  Archbishop  of  Canterbury,  procured  for  him  a  no- 
mination to  Christ's  Hospital,  where  he  very  soon  showed 
remarkable  ability.  The  tablet  put  up  to  his  memory,  in  the 
cloisters  of  that  institution,  records  the  fact,  which  will  not 
be  disputed,  that  by  his  death  the  school  lost  '  a  most 
illustrious  son,'  and  at  various  periods  of  his  life  its  authorities 
marked  their  sense  of  the  honour  he  conferred  upon  it,  by 
congratulations  and  gifts. 


CAMBRIDGE  3 

In  1840  he  went  as  an  Exhibitioner  of  Christ's  Hospital 
to  Pembroke  College,  Cambridge.  Founded  the  year  after 
Crecy  by  I\Iary  de  Valence,  whose  husband,  Audcmard  de 
Valence,  Earl  of  Pembroke,  was  killed  at  a  tournament  on  his 
wedding-day,  that  ancient  house  had  had  its  fair  share  of 
distinguished  men,  especially  of  ecclesiastics,  of  whom  Ridley 
and  Andrewcs  are  perhaps  those  best  remembered  ;  but  its  three 
chief  ornaments  had  been  Spenser,  Gra}',  and  the  younger  Pitt. 

Maine's  undergraduate  career  was  exceptionally  brilliant. 
In  1 841  he  was  elected  a  Foundation  Scholar  of  his  College. 
In  1842  he  gained  the  Chancellor's  medal  for  English  verse, 
the  Camden  medal  for  Latin  hexameters,  and  the  Browne 
medal  for  a  Latin  ode.  In  1843  he  gained  two  more  Browne 
medals — the  one  for  a  Latin  ode,  the  other  for  a  Greek  and  a 
Latin  epigram — becoming  also  Craven  University  Scholar. 

His  English  Prize  Poem  of  1842  was  on  the  birth  of  the 
Prince  of  Wales.  It  is  an  exercise  in  ten-syllable  verse  of  the 
conventional  kind,  showing  no  particular  promise.  Perhaps 
as  good  lines  as  any  in  it  are  the  following  about  Cambridge  : — 

And  now,  when  time  has  quench'd  the  power  which  gave 

Ethereal  music  to  Castaha's  wave, 

Has  torn  the  magic  from  Hymettus'  brow 

And  left  Soracte  nothing  but  her  snow. 

She  guards  in  many  a  speaking  tome  enrolled 

The  glorious  spirit  of  the  days  of  old — 

The  first  of  the  odes  celebrates  the  launching  of  a  ship  of 

war,  built,  as  ships  of  war  were  fifty  years  ago,  of  British  oak, 

which  naturally  comes  much  to  the  front  in  these  verses.    The 

vessel  bore  Nelson  as  its  figure-head,  whence  the  following 

vigorous  lines  : — 

Quin  quaere  pontum  ;  et  Pleiadum  chorus, 
Et  si  quid  inter  sidera  purius 
Candescit,  illucens  eunti 
Subveniat :  neque  tu  minorum 

Ibis  favori  credita  numinum, 
Cui,  fabulosi  luce  potentior 
Pollucis,  in  prora  sedebit 
Effigies  veneranda  tanti 

B  2 


4  MEMOIR   OF   SIR   HENRY   MAINE 

Herois  :  ille  ille  abdita  dextera 
Saxa  indicabit  prcevius,  et  suo 
Gaudebit  infuso  calore  ad 
Arma  suos  stimulasse  cives  ! 

Nothing  could  be  further  than  the  exploits  of  the  British 
Navy  from  the  subjects  which  were  to  be  most  closely  con- 
nected in  after-life  with  the  business  and  tastes  of  him  who 
thus  sang  them.  His  other  ode,  which  was  on  the  Indus, 
marks,  so  far  as  I  am  aware,  his  first  connection  with  the 
land  to  which  that  river  gave  its  name  ;  but  it  contains  nothing 
which  lends  itself  so  well  to  purposes  of  quotation  as  the  lines 
I  have  already  cited.  The  same  may  be  said  of  the  hexa- 
meters upon  '  Caisar  at  the  Rubicon,'  a  subject  which  probably 
did  their  author  one  good  turn  in  making  him  study  Lucan,  a 
writer  who,  at  least  at  Oxford,  was  in  those  days  absolutely 
neglected — most  unwisely,  as  I  venture  to  think,  by  those  who, 
training  for  public  life,  remember  the  saying,  '  Proximus 
oratori  poeta  ; '  and  I  could  support  my  opinion  by  the 
authority  of  Lord  Ellenborough,  as  great  in  relation  to 
eloquence  as  it  is  worthless  in  relation  to  statesmanship. 

Of  the  odes  and  Latin  hexameters  nothing  more  need  be 
said,  save  that  they  sustain  all  the  tests  which  can  be  fairly 
applied  to  that  most  artificial  and  unsatisfactory  form  of  com- 
position, while  they  as  certainly  do  not  sustain  the  tests  which 
their  gifted  author  would  in  later  years  have  applied  to 
compositions  in  any  language  whatever.  I  know  no  sounder 
advice  than  that  which  he  gave  to  the  Bengali  students  in 
Calcutta : — 

'  And  now,  as  I  am  on  this  topic,  I  will  observe  that  there 
is  one  characteristic  of  these  papers  which  has  struck  me  very 
forcibly.  It  is  the  extraordinary  ambition  of  the  Native 
Student  to  write  the  best — perhaps  I  should  rather  say  the 
finest — English.  In  some  cases  the  attempt  has  been  singu- 
larly successful  ;  in  others  it  has  failed,  and  I  think  I  may  do 
some  good  to  the  Native  Students  present  if  I  say  why  I 
consider  it  has  failed.     It  has  failed,  then,  because  the  attempt 


CAMBRIDGE  5 

has  been  too  consciously  and  deliberately  made.  Of  course 
I  do  not  forget  that  these  students  are  writing  in  a  foreign 
tongue,  and  that  their  performances  are  justly  compared  only 
with  those  Latin  themes  which  some  of  the  gentlemen  around 
me  have  written  in  their  youth.  But  on  the  other  hand,  the 
English  of  a  Bengali  lad  is  acquired  for  permanent  and 
practical  purposes,  to  be  written  and  spoken  to  and  among 
those  who  have  written  and  spoken  it  from  their  infancy. 
Under  such  circumstances,  English  can  only  be  well  written 
by  following  the  golden  rule  which  Englishmen  themselves 
follow,  or  ought  to  follow,  and  that  rule  is  never  to  try 
deliberately  to  write  it  well.  Depend  upon  it,  no  man  ever 
wrote  well  by  striving  too  hard  to  write  well.  What  you 
should  regard,  is  not  the  language  but  the  thought,  and  if  the 
thought  be  clearly  and  vividly  conceived,  the  proper  diction, 
if  the  writer  be  an  educated  man,  will  be  sure  to  follow.  You 
have  only  to  look  to  the  greatest  Masters  of  English  style  to 
satisfy  yourselves  of  the  truth  of  what  I  have  said.  Take  the 
first  illustration  which  always  suggests  itself  to  an  English- 
man, and  look  at  any  one  page  of  Shakespeare.  After  you  have 
penetrated  beneath  the  poetry  and  beneath  the  wit,  you  will 
find  that  the  page  is  perfectly  loaded  with  thought ;  and  so,  you 
may  depend  upon  it,  it  will  always  be  at  all  times  and  with  all 
writers.  The  more  you  read,  the  more  convinced  you  will  be 
that  the  finest  fancies  are  formed,  as  diamonds  are  said  to  be 
formed,  under  the  pressure  of  enormous  masses  of  thought. 
The  opposite  process,  that  of  trying  to  bring  in,  at  all  hazards, 
some  favourite  phrase  or  trick  of  language,  will  only  lead  you 
to  a  spurious  and  artificial  result' 

The  very  ungallant  but  rather  amusing  Latin  epigram 
may  be  quoted  in  full.  Now  that  Woman  carries  off  not 
only  the  highest  mathematical,  but  the  highest  classical, 
honours  which  Cambridge  has  to  bestow,  she  may  perhaps 
desire  to  reply  to  it,  and  to  conquer  her  satirist  with  his  owu 
•weapons. 

Olim  MenalctC  Myrtalen,  parem  pari, 

Fausto  jugales  vinculo  taedas  feiunt 

Sociasse  :  necdum  menstruum  confecerat 

Diana  cursum,  quum  puer  casu  foras 


6  MEMOIR   OF   SIR   HENRY    MAINE 

Egressus  ultro  Myrtales  secum  sute 

Laudare  mores,  "  Quam  bene  est  papae  !  viris 

Nactis  lepidulam  conjugem  !  at  certe  mea 

Nee  ipsa  turtur  noverit  concordius 

Spirare  :  nse  vix  ilia  nubilat  semel 

Quot  sunt  dies  in  mense,  qui  si  fugerit 

Amore  plenus,  suaviis,  amplexubus 

Et  melle,  qualis  annus  expectandus  est  ! " 

Dixit :  loquentem  audit :  colaphus  impingitur  : 

"  Coenane  frigescente  cessas,  verbero  ? " 

In  1843,  the  subject  for  the  Enghsh  Prize  Poem  was 
Plato.  Maine  was  a  candidate,  but  not  the  successful  one> 
though  the  composition  which  he  produced  was  very  much 
superior  to  his  fortunate  venture  of  the  year  before. 

Here  is  the  conclusion  : 

The  least  of  things,  like  little  tunes  which  stir 

A  thousand  memories  in  a  traveller, 

Waken'd  his  spirits  sleeping  ;  and  anon 

His  thought,  deserting  that  he  looked  upon, 

Slid  to  the  land  of  dream,  and  wove  around 

A  various  fabric  on  the  narrow  ground — 

And  yet  he  dream'd  not  :  we  who  every  hour 

Build  grain  by  grain  the  mass  of  human  power, 

Must  bow  before  our  Master,  who  but  stood 

And  nurs'd  the  juices  working  in  the  bud 

And  might  not  tend  the  flowering,  who  but  fed 

The  stream  of  Science  at  its  fountain  head. 

Now  spreads  the  flower  :  now  roars  the  stream  :  and  we 

See  but  his  hope  become  reality. 

Maine's  latest  verse  compositions  were,  so  far  as  I  am 
aware,  those  which  he  contributed  to  the  '  Arundines  Cami.' 

In  1844  he  was  Senior  Classic,  and  having  been  able 
without  much  difficulty,  though  at  the  expense  of  a  consider- 
able loss  of  valuable  time,  to  comply  with  the  perverse  regula- 
tion which  then  obliged  candidates  for  the  Chancellor's 
Senior  Classical  Medal  to  take  Honours  in  Mathematics,  he 
tried  for  and  won  that  high  distinction.  Unfortunately, 
however,  no  Fellowship  was  vacant  at  Pembroke,  and  he 
accepted  an  invitation  from  Trinity  Hall  to  become  Tutor 


CAMBRIDGE  7 

there.  That  position  he  occupied  for  two  years,  and  in  1847, 
at  the  very  unusually  early  age  of  twenty-five,  he  was  made 
Regius  Professor  of  Civil  Law. 

I  have  never  come  across  anyone  who  was  intimate  with 
Maine  in  his  early  days  at  Cambridge,  but  Mr.  Franklin 
Lushington,  a  distinguished  member  of  a  distinguished  family, 
knew  him  from  1843  to  1847,  and  has  been  obliging  enough 
to  send  me  the  following  notes  : — 

'  Not  long  after  taking  his  B.A.  degree,  Maine  was  elected 
Tutor  of  Trinity  Hall,  and  in  1847  he  was  nominated  Regius 
Professor  of  Civil  Law,  a  stepping  stone  in  his  career  which 
may  rightly  be  looked  on  as  the  first  definitive  call  to  that  great 
study  to  which  he  gave,  in  one  phase  or  another,  so  much  of  his 
mind  and  so  many  years  of  his  life.  Those  who  were  intimate 
with  him  during  these  years  of  his  academical  course  will 
not  easily  forget  his  face  and  figure,  marked  with  the  delicacy 
of  weak  health,  but  full  to  overflowing  with  sensitive  nervous 
energy — his  discursive  brilliancy  of  imagination  and  intellect 
— his  clear-cut  style  and  precise  accuracy  of  expression — 
and  his  absolute  power  of  concentrating  himself  on  the  sub- 
ject immediately  before  him.  His  mind  was  so  graceful 
that  strangers  might  have  overlooked  its  strength,  while  the 
buoyancy  of  his  enthusiasm  was  never  beyond  the  control  of 
the  most  critical  judgment.  His  only  fault  lay  in  the  habit 
of  burning  his  candle  too  fast,  by  working  without  intermis- 
sion and  without  any  sort  of  physical  recreation,  for  which 
indeed  he  had  no  natural  turn.  It  was  hard  to  drag  him 
away  from  his  rooms  and  his  books,  even  for  the  ordinary 
minimum  of  constitutional  exercise,  though  his  spirits  and 
width  of  interest  made  him  at  all  times  a  joyous  companion. 
Filled  with  the  highest  ambitions,  and  gifted  with  an  insatiable 
power  of  work,  Maine  might  be  truly  said  at  this  period  of 
his  career  to  have  striven  to  realise  in  his  practice  the  uncom- 
promising motto,  "  Semper  arcum  tendit  Apollo."  ' 

The  present  Master  of  Trinity  Hall,  in  an  excellent 
address  delivered  in  the  Chapel  there  on  February  8,  1888, 
spoke  as  follows  : — 


8  MEMOIR   OF   SIR   HENRY   MAINE 

'  My  thoughts  carry  me  back  to  the  time  when  the 
Master  and  I  were  undergraduates — he  at  Pembroke  and  I 
at  Trinity.  He  was  my  senior  in  standing  by  a  year.  I  first 
heard  of  him  as  getting  the  Chancellor's  medal  for  the  English 
Prize  Poem,  together  with  the  Camden  and  Browne  medals, 
and  I  first  saw  him  at  the  recital  in  the  Senate  House.  His 
appearance  was  bright  and  striking.  He  had  come  up  young, 
and  except  for  passing  looks  of  thoughtfulness,  his  appearance 
was  very  youthful.  The  general  character  of  his  countenance 
he  retained  nearly  to  the  last,  for  any  old  friend  who  had  not 
seen  him  since  college  days  would  have  recognised  him  at 
once  a  month  ago.  It  was  remarked  that  his  voice  in  recital 
was  singularly  clear  :  as  some  one  said  of  him,  "  It  was  like  a 
silver  bell." ' 

'  Men  were  not  in  those  days  distributed  by  open  scholar- 
ships as  they  are  now,  and  candidates  for  the  Classical 
Tripos  congregated  very  much  at  Trinity  College.  Of  these 
a  large  number  were  my  friends,  and  we  all,  classics  and 
mathematicians  alike,  looked  to  our  great  hero— an  admirable 
scholar  and  a  man  of  extraordinary  general  gifts — to  take  the 
first  place  in  the  Classical  Tripos.  Gradually,  a  rumour 
spread  of  a  strong  man  at  Pembroke  ;  shortly,  to  our  dismay, 
the  Craven  Scholarship  was  awarded  to  "  Maine,  of  Pembroke." 
Then  commenced  a  Homeric  conflict  between  the  heroes  of 
scholarship  ;  sometimes  one  got  a  University  prize,  and  some- 
times the  other.  The  whole  College  was  interested  in  a  way 
that  you  would  hardly  now  understand.  The  final  victory 
remained  with  our  late  Master,  who  was  Senior  Classic  and 
Senior  Medallist  in  1844.  And  now  that  both  competitors 
are  gone,  what  is  most  pleasant  for  a  surviving  friend  of  each 
is  to  think  that  throughout  the  contest  they  were  always 
friends.' 

The  Hector  of  Trinity  who  fell  before  the  Achilles  of 
Pembroke  was  Mr.  W.  G.  Clark,  long  known  as  '  Clark  the 
Public  Orator,'  who  died  a  good  many  years  before  his  rival, 
regretted  by  all  who  knew  him. 

In  1852,  Mr.  Bristed,  an  American  gentleman,  published 
a  book  called  '  Five  Years  at  an  English  University,'  which 


CAMBRIDGE  9 

is  already  curious,  and  will  become  in  another  hundred  years 
very  valuable  to  anyone  who  writes  the  history  of  Cambridge 
as  it  was  just  before  it  was  caught  by  the  current  of  educational 
reform,  which  began  to  run  so  strongly  both  there  and  at 
Oxford  in  the  first  years  of  the  second  half  of  the  nineteenth 
century.  Mr,  Bristed,  who  possessed  considerable  ability, 
read  for  Honours  and  became  Maine's  first  pupil— I  suppose 
in  1844.     He  says  : — 

'  I  had  some  curiosity  to  see  how  this  tutor  of  mine,  so 
young  as  he  was,  about  two  years  my  junior,  and  fresh  from 
a  team  himself,  would  get  on  at  first,  and  whether  his  known 
cleverness  would  help  him  or  be  in  his  way.  The  result 
removed  all  doubts  and  surpassed  my  most  sanguine  expec- 
tations. I  could  feel  that  I  was  being  admirably  jockeyed. 
He  had  the  greatest  dexterity  in  impressing  his  knowledge 
upon  others,  made  explanations  that  came  to  the  point  at 
once  and  could  not  be  misunderstood,  corrected  mistakes  in  a 
way  that  one  was  not  apt  to  forget,  supplied  you  with  endless 
variety  of  happy  expressions  for  composition  and  dodges  in 
translation — in  short,  I  was  conscious  of  making  progress 
with  him  every  day,  and  only  regretted  that  I  could  not  con- 
tinue with  him  through  the  Long.' 

The  following  passage  from  the  same  author  may  also  be 
cited  : — 

'  I  have  some  of  these  after-dinner  groups  in  my  mind's 
eye  now^ — Travis,  a  sort  of  small  Borrow,  all  but  the  belliger- 
ency, knowing  all  manner  of  out-of-the-way  languages  and  out- 
of-the-way  places,  ready  to  talk  about  any  subject,  all  things 
by  turns,  and  nothing  long  :  now  making  a  pun,  now  telling 
a  gipsy  story,  now  joining  in  a  grave  critical  and  now  in  a 
graver  theological  discussion,  always  very  brilliant  and  plau- 
sible, but  not  always  very  logical  ;^the  tall,  grave,  statuesque 
Plato  lecturer,  half  admiring,  half  ashamed  of  his  apostolic 
confrere,    dropping    his     magisterial    decisions    in    polished 

sarcasms  ; — E ,  the  poetic-looking  Senior  Wrangler  (who 

was  an  exquisite  in  his  dinner  costume,  and  always  got  him- 


lO  MEMOIR   OF   SIR   HENRY   MAINE 

self  up  as  carefully  for  a  bachelor  party  as  if  he  were  to  meet 
a  roomful  of  ladies),  conspicuous  in  his  crimson  waistcoat, 
speckled  stockings,  and  very  symmetrical  white  tie,  occupy- 
ing the  most  comfortable  chair  in  the  room,  seeing  through 
everything  and  everybody  with  his  searching  eyes,  and  occa- 
sionally with  two  or  three  of  his  close  sentences  tumbling 
down  all  that  Travis  had  been  saying  for  the  last  half- 
hour  ; — Henry  Hallam,  maintaining  a  modest  silence  as  the 
youngest  man  present,  but  looking  so  eloquent  that  everyone 
wanted  him  to  talk,  till  at  last  he  would  talk,  wonderfully ; — 
the  Pembroke  man,  also  backward  to  speak  before  his  elders 
(he  had  the  rare  merit  of  being  either  a  talker  or  a  listener,  as 
circumstances  demanded),  but,  when  he  did  speak,  putting 
in  keen  and  rapid  remarks  that  told  like  knock-down  blows.' 

Travis  is  doubtless   Tom  Taylor,  the  Plato  lecturer  the 

last  Master  of  Trinity,  E Ellis,  and  the  Pembroke  man 

Maine. 

I  have  sometimes  thought  that  my  friend's  abilities  would 
have  found  an  even  more  congenial  field  at  Oxford  than  they 
did  at  Cambridge.  True  it  is  that,  although  he  was  too  civil 
to  say  so,  except  to  those  with  whom  he  was  very  intimate, 
he  regarded  most  of  his  Oxford  contemporaries  as  just  a  little 
off  their  heads,  and  believed  that  they  owed  that  condition  of 
mind  to  the  extraordinary  farrago  of  notions  made  up  of 
Aristotle's  Ethics,  Patristic  Theology,  Formal  Logic,  High 
Church  enthusiasms,  and  what  not,  with  which  their  Univer- 
sity so  bounteously  fed  her  more  studious  sons  during  the 
Forties.  His  view  may  or  may  not  have  been  a  correct  one. 
An  Oxford  man  is  not  likely  entirely  to  subscribe  to  it ;  but 
Maine's  intellect  was  so  strong  and  so  clear  that  he  would 
have  passed  scatheless  even  through  a  prolonged  course  of 
what  was  then  known  as  '  Science '  on  the  banks  of  the  Isis, 
while  his  undergraduate  career  would  have  exactly  synchro- 
nised with  the  most  interesting  and  exciting  period  in  the 
modern  history  of  Oxford. 

In    1847  he  married   his  cousin.  Miss  Jane   Maine,  who 


THE   'MORNING   CHRONICLE'  II 

survives  him.  His  new  responsibilities  made  it  necessary  for 
him  to  prepare  for  the  active  duties  of  a  profession,  and  in 
1850  he  was  called  to  the  Bar.  Even  at  the  very  beginning 
of  his  married  life  he  had  written  a  little  for  periodicals,  but 
his  earliest  performances  in  that  line  with  which  I  am  ac- 
quainted belong  to  the  year  1 841,  and  were  contributed  to  the 
'  Morning  Chronicle,'  which,  under  the  direction  of  Mr.  John 
Douglas  Cook,  of  whom  I  shall  have  to  speak  farther  on,  had 
recruited  a  great  deal  of  young  ability  at  both  the  two  old 
Universities. 

A  great  many  of  these  articles  deal  with  French  politics. 
The  very  first  in  the  collection  which  I  have  had  the  advantage 
of  examining  is  upon  speeches  of  Thiers  and  Montalembert,, 
soon  after  the  election  of  Louis  Napoleon  as  President.  Not 
a  few  relate  to  America,  and  their  author  kept  up,  to  1883 
at  least,  a  considerable  interest  in  the  affairs  of  that  country, 
as  all  readers  of  his  book  on  Popular  Government  know  well. 
Now  and  then  he  writes  of  Germany  and  of  Hungary,  but  of 
these  countries  he  knew  next  to  nothing,  and  his  contri- 
butions to  the  discussions  of  their  excessively  complicated 
affairs  had  no  special  value. 

His  sympathies  in  those  days  were,  so  far  as  English 
politics  were  concerned,  entirely  with  that  section  of  his  party 
which  had  followed  Peel,  and  nearly  all  of  whom,  a  few  years 
later,  joined  the  Liberals. 

Maine's  early  leaders  are  full  of  hatred  for  a  man  who  was 
the  object  of  very  general  dislike,  both  amongst  his  opponents 
and  in  his  own  party,  till  his  extraordinary  abilities  and 
absolute  want  of  scruple  placed  him  at  the  head  of  the  great 
Conservative  majority  of  1874,  and  led  to  his  apotheosis  by 
a  political  connection  to  which  he  never  at  heart  belonged, 
and  which,  till  quite  near  the  end  of  his  life,  profoundly  dis- 
trusted him.     Here  are  two  specimens  : — 

In  1849  Maine  speaks  of  that  eminent  person  as  believ- 
ing   in  Protection  'with  the  same  intensity  of    faith   which 


12  MEMOIR   OF   SIR   HENRY   MAINE 

animated  General  Bonaparte  to  profess  Islam.'  About  the 
same  time  he  addresses  Mr.  Disraeli's  followers  in  these 
words  : 

*  Already  you  are  manifesting  considerable  aptitude  for 
the  policy  which  has  conducted  your  leader  to  eminence — 
already  the  Jacobinical  colouring  of  your  language  and 
argument  shows  that  you  are  not  indisposed  to  alternate 
Conservative  commonplace  with  Revolutionary  verse  and 
Radical  prose.  All  that  you  have  to  learn  is  the  art  of 
diverting  attention  while  you  shift  your  views,  the  unintel- 
ligible gabble  of  the  thimble-rigger  as  he  changes  his  peas. 
When  you  have  mastered  this  accomplishment,  the  rest  is 
quite  simple.' 

Maine's  leaning  to  moderate  Liberalism  extended  as  well 
to  foreign  as  to  home  questions.  Here  is  an  extract  from  an 
article  of  the  year  1 849,  very  creditable  as  well  to  his  good 
sense  as  to  his  powers  of  prevision  : — 

'  We  have  no  wish,  in  the  present  state  of  our  informa- 
tion, to  pronounce  on  the  greater  or  less  proximity  of  a 
coup  d'etat.  But  we  may  be  permitted  to  say  that  the 
doubtful  expediency  of  such  a  step  is  the  strongest  reason 
for  disbelieving  its  imminency.  Looking  to  the  prospects 
of  French  Conservatism — and  it  is  certain  that  the  interests 
of  Conservatism  would  be  the  pretext  of  the  attempt,  if  made 
— we  are  not  disposed  to  think  that  it  would  gain  as  much  as 
it  would  lose  by  the  destruction  of  the  young  democracy. 
The  elevation  to  a  throne  of  Louis  Napoleon  or  the  Count 
de  Chambord  would,  of  course,  have  the  effect  of  making  the 
depository  of  authority  stronger  for  the  time  in  material 
force,  but  it  would  at  once  transfer  to  the  ranks  of  the  dis- 
contented the  more  devoted  partisans  of  the  rival  dynasties, 
and  would  add  immeasurably  to  the  moral  strength  of  the 
common  enemy.  And  who  can  say  how  long  the  sceptre 
would  remain  to  any  line  of  French  kings  }  Twenty  more 
years  might  bring  another  February  24,  and,  that  time  at 
least,  the  victory  would  be  to  Socialism  alone,  to  Socialism 
schooled  and  warned  by  the  events  of  1 848  !     To  judge  from 


TIIK   MIDDLE   TEMPLE  1 3 

probabilities  and  the  past,  universal  suffrage  is  likely  to  give 
the  party  of  Order  a  lease  of  power  quite  as  long  as  the  con- 
centration of  authority  in  a  single  hand.  Indeed,  when  the 
venture  of  universal  suffrage  has  been  once  tried  with  safety 
and  success,  it  would  be  unwise,  under  any  circumstances,  to 
cast  abroad  anew  in  the  field  of  political  experiment ;  and 
more  than  unwise  in  the  circumstances  of  France.  The 
claims  of  three  great  dynasties,  based  respectively  on  Pre- 
scription, Possession,  and  Prestige,  fall  at  once  into  abeyance 
when  the  nation  assumes  to  guide  its  own  steps.  If  the 
attempt  prove  immature,  and  the  staggering  commonweal  is 
in  peril  of  falling,  France  must  brave  the  danger  of  allowing 
their  pretensions  to  revive  and  conflict.  But  so  long  as  it 
moves  steadily  forward,  to  strike  it  down  or  trip  it  up,  at  the 
cost  of  turning  into  gall  the  best  and  wholesomest  blood  in 
the  whole  of  France,  would  be  a  great  piece  of  foolishness 
no  less  than  a  great  crime.' 

In  1852  the  Inns  of  Court,  which  had  seen  serious  reforms 
begun  both  at  Oxford  and  Cambridge,  determined  to  follow 
so  good  an  example.  They  appointed  five  readers — in 
Roman  Law  and  Jurisprudence,  in  Real  Property,  in  Equity, 
in  Common  Law,  and  in  Constitutional  Law.  They 
created  also  a  number  of  studentships,  to  be  awarded  to 
those  young  men  who  had  acquitted  themselves  best  in 
examinations  to  be  held  three  times  a  year  upon  the  lectures 
delivered  and  the  books  prescribed  by  the  readers. 

It  was  the  first  of  these  examinations  which  made  me 
acquainted  with  Maine,  in  the  spring  of  the  year  1853,  and  I 
followed  both  his  public  and  private  lectures  for  several  years 
very  conscientiously.  The  public  lectures  were  given  in  the 
beautiful  hall  of  the  Middle  Temple,  one  of  the  noblest  rooms 
in  London,  and  the  first  place,  it  is  said,  in  which  Shakespeare's 
*  Twelfth  Night '  was  acted.  Maine  was  a  most  admirable 
lecturer  ;  his  voice  was  exceptionally  powerful,  his  style  like 
crystal  and  every  sentence  perfectly  finished.  As  to  the 
scientific  value  of  the  lectures  which  he  read,  it  is  enough  to 


14  MEMOIR   OF   SIR   HENRY   MAINE 

say  that  the  expressed  essence  of  several  courses  was  after- 
wards given  to  the  world  in  '  Ancient  Law.'  Those  of  his 
private  lectures  which  I  attended  turned  chiefly  on  the 
Institutes  of  Gaius,  which  he  introduced  to  me,  and  to  a  good 
many,  I  believe,  of  my  contemporaries  who  remained  devoted 
to  studies  which  I  entirely  relinquished  not  long  after  the 
period  of  which  I  am  speaking.  What  struck  me  most  about 
him  as  a  companion,  at  this  time,  was  the  strange  contrast 
between  the  excessive  fragility  of  his  appearance,  for  he  was 
just  recovering  from  an  illness  which  had  been  all  but  fatal, 
and  the  vigour  of  his  mind.  His  talk  was  singularly  bright, 
alert,  and  decided  ;  you  could  not  walk  a  couple  of  hundred 
yards  with  him  without  hearing  something  that  interested 
you,  and  he  had  the  enviable  power  of  raising  every  subject 
that  was  started  into  a  higher  atmosphere.  In  later  life  he 
became  much  more  silent,  and  did  not  seem  to  put  his  intelli- 
gence, so  to  speak,  as  quickly  alongside  that  of  the  person  to 
whom  he  was  talking. 

Maine  practised  for  a  very  short  time  at  the  Common  Law 
Bar  and  belonged  to  the  Norfolk  Circuit ;  but  he  soon  went 
over  to  the  Equity  branch  of  his  profession.  Health,  how- 
ever, much  interfered  with  his  work,  and  his  liability  to  violent 
and  varied  attacks  of  illness,  during  the  years  when  a  prac- 
tice is  usually  built  up,  would,  I  suspect,  have  made  anything 
like  the  work  of  a  fully  employed  lawyer  quite  out  of  the 
question  for  him. 

In  the  September  of  1855  he  spent  ten  days  at  my  father's 
house  in  Aberdeenshire  ;  his  mind  was  then  full  of  a  weekly 
newspaper  which  was  about  to  appear,  and  it  was  he,  I 
believe,  who,  immediately  before  or  after  this  visit,  suggested 
the  name  which  has  since  become  very  famous, '  The  Saturday 
Review.'  It  made  its  dediit  in  November,  and  Maine  wrote 
in  the  opening  number.  The  first  editor  was  Mr.  John 
Douglas  Cook,  already  mentioned,  a  very  shrewd  Scotchman 
who  came,  I  think,  originally  from  Kincardine  or  one  of  the 


THE   'SATURDAY   REVIEW'  I  5 

neighbouring  counties.  He  never  had  much  education  and 
did  not  write  at  all  himself;  but  he  had  great  skill  in  finding 
others  who  could,  and  often  made  very  judicious  corrections 
in  the  work  of  men  immeasurably  superior  to  himself  both  in 
ability  and  acquirements. 

And  a  very  brilliant  band  he  managed  to  collect  together 
in  the  early  days  of  his  new  venture.  Of  these  the  two  who 
have  filled  the  greatest  space  in  the  world's  eye  since  were 
Lord  Salisbury  and  Sir  William  Harcourt  ;  but  Sir  James 
Stephen,  Mr.  Goldwin  Smith,  Mr.  Walter  Bagehot,  Professor 
Owen,  Mr.  T.  C.  Sandars,  Mr.  George  Venables,  and  a  great 
many  more  formed  part  of  it  at,  or  soon  after,  the  outset. 
From  three  years  to  three  years,  generation  after  generation 
came  from  the  banks  of  the  Cam  and  the  Isis  to  serve  under 
the  banner  of  the  old  literary  condottiere,  who  was,  to  use  the 
phrase  of  one  who  knew  him  well,  'thoroughly  bon  enfant,' 
but  whose  experiences  as  related  by  himself  had  been  of 
a  highly  uncommon  and  sensational  character. 

Venables  proposed  at  one  time  to  write  an  essay  after  the 
German  fashion  on  Das  CookiscJie  Ich,  in  which  he  intended 
to  set  forth  the  various  persons  and  companies  of  persons  into 
whom,  after  a  long  and  intimate  study,  he  thought  he  could 
resolve  the  pronoun  '  I  '  as  used  by  our  old  friend. 

I  do  not  think  there  was  anyone  whose  contributions  this 
peculiar  but  sagacious  personage  valued  more  than  those  of 
Maine.  He  wrote  on  all  kinds  of  subjects,  sometimes  review- 
ing books,  oftener  contributing  leading  articles.  One  series 
of  these,  which  he  wrote  in  1857-8,  was,  I  think,  particularly 
successful.  It  was  devoted  to  the  defence  of  the  system 
of  Indian  government  which  was  swept  away  in  the  last- 
named  year.  I  did  not  agree  with  them,  thinking  that, 
although  a  great  many  reasons  given  for  the  change  were 
futile  enough,  the  great  convulsion  of  the  Mutiny  and  the 
public  excitement  following  thereon  had  created  a  convenient 
opportunity  for  putting  an  end  to  arrangements  which  had 


l6  MEMOIR    OF   SIR   HENRY   MAINE 

grown  up  as  the  result  of  numerous  historical  accidents,  not 
of  set  purpose,  and  which  were  certainly  cumbrous  in  the 
extreme.  No  one,  however,  admired  more  heartily  than  I  did 
the  dexterity  with  which  my  friend  brought  out  every  point 
that  could  be  raised  in  favour  of  his  clients.  A  portion  of 
one  of  these  articles  I  venture,  by  the  permission  of  the 
present  editor,  to  transfer  to  these  pages.  It  appeared  in 
December  1857  : 

*  Even  though  the  proposed  consolidation  of  administra- 
tive functions  should  involve  the  merest  change  of  title,  and 
in  effect  simply  substitute  a  Council  of  India  for  the  Court  of 
Directors  of  the  East  India  Company,  it  would  be  impossible 
to  reflect  without  emotion  on  the  extinction  of  so  mighty  a 
name.  In  hoc  signo  vicimus.  That  wonderful  succession  of 
events  which  has  brought  the  youngest  civilisation  of  the  world 
to  instruct  and  correct  the  oldest,  w^hich  has  reunited  those 
wings  of  the  Indo-European  race  which  separated  in  the  far 
infancy  of  time  to  work  out  their  strangely  different  missions, 
which  has  avenged  the  miscarriage  of  the  Crusades  by  placing 
the  foot  of  the  most  fervently  believing  of  Christian  nations  on 
the  neck  of  the  mightiest  of  Mahometan  dynasties — will  in- 
evitably be  read  by  posterity  as  the  work,  not  of  England,  but 
of  the  English  East  India  Company.  We  may  be  permitted 
to  express  our  disgust  at  the  mode  in  which  the  proposed  dis- 
solution of  this  great  Association  was  first  proclaimed  to  the 
world.  The  language  employed  cannot,  and  should  not,  be 
forgotten.  It  is  one  proof  among  many  that  we  are  not  quite 
worthy  of  our  history.  It  is  one  illustration  among  many  of 
that  nameless  touch  of  vulgarity  which  robs  us  with  our  con- 
temporaries, as  it  assuredly  will  rob  us  wath  posterity,  of  the 
honour  which  is  due  to  our  freedom  and  our  glory.  The  fact, 
or  the  probability,  that  the  East  India  Company  would  be 
extinguished  was  announced  for  the  first  time  in  the  same 
sentence  with  a  sneer  at  its  "  antique  traditions  "  and  in  the 
middle  of  what  we  must  call  an  impudently  fictitious  apology 
for  the  supineness  of  the  department  which  systematically 
spoils  its  policy.  The  antique  traditions  of  the  East  India 
Company ! — they  are  Conquest  and  Government.     Not  one 


'THE   CAMBRIDGE    ESSAYS'  I7 

of  those  who  arc  eager  to  share  the  fruits  of  its  patience  and 
energy — not  the  Crown  and  Parliament  which  fooled  away 
between  them  the  only  empire  we  ever  had  which  could  be 
compared  with  India — not  the  malcontents  at  Calcutta,  who 
want  liberty  to  capitalise  and  tyrannise — not  the  religious 
world,  which  means  to  convert  all  the  Hindus  without  excep- 
tion as  soon  as  it  has  quite  settled  whether  there  are  to  be 
preachings  in  Exeter  Hall — not  one  of  these  has  moved  one 
finger  in  the  establishment  of  our  Eastern  dominions  except 
to  imperil  and  retard  it.  "  The  partisans  of  the  Directors,'* 
said  the  journalist  charged  with  tolling  the  Directors'  knell, 
"  believe  that  India  belongs  to  the  Company."  India  does 
indeed  belong  to  the  Company  in  one  sense,  and  the  vested 
right  is  one  which  no  amount  of  shameless  calumny  will 
succeed  in  extinguishing.  No  transient  libels  will  dissociate 
India  from  that  Board  of  Administrators  which  traces  its 
pedigree  to  a  company  of  merchants,  just  as  the  most  famous 
and  durable  polity  of  the  Middle  Ages  was  born  among  the 
traffickers  of  the  Venetian  lagunes.  Of  course  no  perpetuity 
can  be  claimed  for  the  East  India  Company,  which  is  only  the 
form  in  which  English  energy  has  embodied  itself  But,  for 
all  that,  to  announce  its  dissolution,  or  even  its  rebaptism,  in 
the  coarse  commonplaces  of  the  platform  agitators,  is  to  treat 
a  great  historic  power  with  an  ignoble  variety  of  the  neglect 
which  broke  the  heart  of  Cortez,  and  of  the  ingratitude 
which  dishonoured  or  assassinated  Labourdonnais,  Lally,  and 
Dupleix.' 

A  little  before  the  time  of  which  I  am  speaking  there 
began  to  appear  at  each  of  the  two  Universities  a  series  of 
monographs,  long  since  discontinued,  which  were  known 
respectively  as  the  Oxford  and  Cambridge  Essays.  To  the 
Cambridge  volume  of  1856  Maine  contributed  an  extremely 
characteristic  paper  on  Roman  Law  and  Legal  Education. 
Many  of  the  views  which  found  expression  in  it  have  been 
so  widely  adopted  since  as  to  rob  it  of  some  of  the  attraction 
which  it  had  for  its  first  readers  six-and-thirty  years  ago  ;  but 
portions  of  it  might  still  be  read,  marked,  and  inwardly  digested 

C 


1 8  MEMOIR   OF   SIR   HENRY   MAINE 

with  considerable  advantage  to  the  Public  Service.     Here  is 
one  of  them  : — 

*  It  is  the  secret  belief  of  many  of  the  most  accurate  minds 
in  England  that  International  Law,  Public  and  Private,  is  a 
science  of  declamation,  and  when   phraseology  intended  by 
the  writer  to   be  taken  strictly  is  understood  by  the  reader 
loosely,  the  impression  is  not  at  all  unnatural.      We  cannot 
possibly   overstate   the    value  of  Roman  Jurisprudence  as  a 
key  to  International  Law,  and  particularly  to  its  most  import- 
ant department.     Knowledge  of  the  system  and  knowledge 
of  the  history  of  the  system  are  equally  essential  to  the  com- 
prehension   of  the  Public  Law  of  Nations.     It  is  true  that 
inadequate  views  of  the  relation  in  which  Roman  law  stands 
to  the  International  scheme  are  not  confined  to  Englishmen. 
Many  contemporary  publicists  writing  in  languages  other  than 
ours  have  neglected  to  place  themselves  at  the  point  of  view 
from  which  the  originators  of  Public  Law  regarded  it,  and  to 
this  omission  we  must  attribute  much  of  the  arbitrary  assertion 
and  of  the  fallacious  reasoning  with  which  the  modern  litera- 
ture of  the  Law  of  Nations  is  unfortunately  rife.       If  Inter- 
national Law  be  not  studied  historically — if  we  fail  to  com- 
prehend, first,  the  influence  of  certain  theories  of  the  Roman 
jurisconsults  on  the  mind  of  Hugo   Grotius,  and  next,   the 
influence  of  the  great  book  of  Grotius  on  International  Juris- 
prudence— we  lose  at  once  all  chance  of  comprehending  that 
body  of  rules  which  alone  protects  the  European  Common- 
wealth from  permanent   anarchy,  we  blind  ourselves  to  the 
principles  by  conforming  to  which  it  coheres,  we  can  under- 
stand   neither    its    strength    nor   its    weakness,    nor    can    we 
separate    those  arrangements  which  can  safely  be  modified 
from   those    which   cannot  be   touched  without  shaking  the 
whole  fabric  to  pieces.      The  authors  of  recent  international 
treatises  have  brought  into  such  slight  prominence  the  true  • 
principles  of  their  subject,  or  for  those  principles  have  sub- 
stituted assumptions  so  untenable,  as  to  render  it  matter  of 
no  surprise  that  a  particular  school  of  politicians  should  stig- 
matise International  Law  as  a  haphazard  collection  of  arbi- 
trary rules,    resting  on  a    fanciful    basis,  and  fortified   by   a 
wordy  rhetoric.    Englishmen,  however — and  the  critics  alluded 


'  THE   CAMBRIDGE   ESSAYS  '  I9 

to  are  mostly  Englishmen — will  always  be  more  signally  at 
fault  than  the  rest  of  the  world  in  attempting  to  gain  a  clear 
view  of  the  Law  of  Nations.  They  are  met  at  every  point  by 
a  vein  of  thought  and  illustration  which  their  education  renders 
strange  to  them  ;  many  of  the  technicalities  delude  them  by 
consonance  with  familiar  expressions,  while  to  the  meaning 
of  others  they  have  two  most  insufficient  guides  in  the  Latin 
etymology  and  the  usage  of  the  equivalent  term  in  the  non- 
legal  literature  of  Rome.  Little  more  than  a  year  has  elapsed 
since  the  Lower  House  of  the  English  Parliament  occupied 
several  hours  with  a  discussion  as  to  the  import  of  one  of  the 
commonest  terms  inherited  by  modern  jurisprudence  from 
Roman  Law.  Nor  are  these  remarks  answered  by  urging  that 
comparative  ignorance  of  International  Law  is  of  little  con- 
sequence so  long  as  the  parties  to  International  discussions 
completely  understand  each  other,  or,  as  it  might  be  put,  that 
Roman  Law  may  be  important  to  the  closet-study  of  the  Law 
of  Nations,  but  is  unessential  as  regards  diplomacy.  There 
cannot  be  a  doubt  that  our  success  in  negotiation  is  some- 
times perceptibly  affected  by  our  neglect  of  Roman  Law  ; 
for,  from  this  cause,  we  and  the  public,  or  negotiators,  of  other 
countries  constantly  misunderstand  each  other.  It  is  not 
rarely  that  we  refuse  respect  or  attention  to  diplomatic  com- 
munications, as  wide  of  the  point  and  full  of  verbiage  or  con- 
ceits, when  in  fact  they  owe  those  imaginary  imperfections 
simply  to  the  juristical  point  of  view  from  which  they  have 
been  conceived  and  written.  And  on  the  other  hand.  State 
papers  of  English  origin,  which  to  an  Englishman's  mind 
ought,  from  their  strong  sense  and  directness,  to  carry  all  before 
them,  will  often  make  but  an  inconsiderable  impression  on 
the  recipient  from  their  not  falling  in  with  the  course  of 
thought  which  he  insensibly  pursues  when  dealing  with  a 
question  of  public  law.  So  long  as  they  cannot  be  dis- 
entangled, English  influence  suffers  obvious  disadvantage 
through  the  imperfect  communion  of  thought.  It  is  undesir- 
able that  there  should  not  be  among  the  English  public  a 
sensible  fraction  which  can  completely  decipher  the  documents 
of  International  transactions,  but  it  is  more  than  undesirable 
that  the  incapacity  should  extend  to  our  statesmen  and  diplo- 


20  MEMOIR   OF   SIR   HENRY   MAINE 

matists.  Whether  Roman  law  be  useful  or  not  to  English 
lawyers,  it  is  a  downright  absurdity  that  on  the  theatre  of 
International  Affairs  England  should  appear  by  delegates  un- 
equipped with  the  species  of  knowledge  which  furnishes  the 
medium  of  intellectual  communication  to  the  other  performers 
on  the  scene.' 

During  the  years,  however,  from  1855  to  1861  the 
'Saturday  Review'  remained  Maine's  principal  means  of 
communicating  with  the  public  outside  that  small  portion  of 
it  which  was  engaged  in  legal  studies.  In  the  last-mentioned 
year,  however,  he  took  a  step  which  at  once  gave  him  a  very 
high  position  amongst  men  of  letters  :  he  published  '  Ancient 
Law.' 

The  success  of  that  work  was  very  rapid  as  well  as  very 
great.  Amongst  the  earlier  notices  two  which  specially 
pleased  its  author — the  first  as  giving  an  accurate  account  of 
the  book,  the  second  as  discussing  very  ably  some  of  the 
questions  raised  in  it — appeared,  the  one  in  the  '  Scotsman,' 
from  the  pen  of  an  anonymous  writer,  the  other  I  forget  where, 
from  the  pen  of  its  author's  distinguished  pupil  and  friend, 
Mr.  Frederic  Harrison. 

To  dwell  upon  the  contents  of  a  treatise  on  which  every 
one  who  cares  for  juridical  subjects  at  all  and  is  under  fifty 
has  been  brought  up,  would  be  a  vain  labour  ;  but  I  apprehend 
that  the  best  authorities  on  such  matters  would  tell  us  that 
though  '  Ancient  Law '  made  an  epoch  in  the  history  of  English 
legal  education,  and  though,  at  least  for  several  generations 
to  come,  it  will  have  to  be  studied,  not  a  few  of  its  conclusions 
would  probably  be  modified  if  its  author  were  writing  now. 
Sir  Frederick  Pollock,  for  example,  said  in  a  lecture  delivered" 
at  Oxford  and  published  in  the  '  Contemporary  Review  ' : — 

'It  was  inevitable  that  Maine's  works  should  become  text- 
books ;  but  whoever  takes  them  merely  as  text-books  con- 
demns himself  to  lose  the  better  half  of  their  value.  Thus 
"  Ancient  Law  "  is  of  permanent  importance  as  a  leading  type 


'ANCIENT    law'  21 

of  the  comparative  method  which  has  in  the  present  generation 
become  famihar.  Its  principal  instances  are  taken,  and  for 
good  reasons,  from  the  history  of  Roman  Law.  Maine 
followed  the  best  authorities  then  in  existence  in  his  present- 
ment of  that  history,  and  also  with  good  reason,  for,  even  if 
his  taste  and  inclination  had  been  to  controvert  accepted  views 
in  detail,  he  still  could  not  have  done  so  without  making  his 
book  a  critical  monograph  on  the  historical  problems  of 
Roman  Lav/,  which  it  was  expressly  not  meant  to  be.  Few 
of  these  historical  inferences  or  assumptions  appear  at  this 
day  quite  so  probable  as  they  did  in  i86i.  Some  of  them 
now  appear  decidedly  improbable.  It  might  be  safe  to  say 
that  one  or  two  are  finally  disproved.  Yet  a  student  who 
should  think  he  had  nothing  to  learn  from  Maine's  discussion, 
for  instance,  of  the  early  history  of  contract  would  commit  a 
more  dangerous  error  than  one  who  should  read  the  discussion 
and  omit  to  inquire  whether  its  data  could  still  be  trusted. 
He  would  err  more  dangerously,  because  omissions  or  mistakes 
in  matters  of  information  may  be  corrected  at  any  time,  but 
the  discipline  which  comes  of  tracing  the  methods  of  great 
masters  must  be  acquired  while  the  mind  is  plastic,  and,  if 
omitted  then,  can  hardly  be  supplied  in  later  life.  To  Maine, 
who  began  his  work  in  the  mighty  and  still  present  shadow 
of  Savigny,  and  might  have  seen  Savigny  alive,  Savigny's 
historical  deduction  of  the  Roman  verbal  contract  from  an 
archaic  Roman  form  of  conveyance  appeared  conclusive. 
At  this  day  nearly  a  generation  of  active  work  and  discussion 
has  intervened,  and  the  prevailing  opinion  is  that  the  origin 
of  the  stipulation  must  be  sought  in  a  wholly  different  quarter. 
But  this  in  no  wise  affects  the  general  interest  of  the  pheno- 
menon with  which  Maine  was  concerned,  and  for  the  sake  of 
which  the  origin  of  the  Roman  stipulation,  whatever  the  true 
solution  maybe,  is  of  more  than  technical  importance  :  namely, 
the  slowness  with  which  the  modern  conception  of  contract — 
the  right  and  the  duty  of  the  civil  magistrate  to  compel  the 
fulfilment  of  promises  made  by  citizens  of  the  State — has 
everywhere  been  developed.  And  the  final  solution  will  be 
found,  whenever  it  is  found,  by  working  with  the  instruments 
which  Maine  has  left  us.' 


22  MEMOIR   OF   SIR   HENRY   MAINE 

Before  the  end  of  the  year  in  which  '  Ancient  Law '  ap- 
peared, Sir  Charles  Wood,  the  late  Lord  Halifax, offered  Maine 
the  Law  Membership  in  the  Council  of  the  Governor-General, 
the  same  office — somewhat,  however,  exalted  in  power  and 
dignity — which  had  been  so  brilliantly  filled  by  Macaulay. 
Maine  consulted  the  physician  who  was  then  considered  the 
highest  medical  authority  on  the  health  of  Englishmen  in 
India,  and  was  told  that  if  he  went  to  Calcutta  his  life  would 
not  be  worth  three  months'  purchase.  He  accordingly 
declined  the  appointment,  and  it  was  given  to  Mr.  Ritchie. 
That  gentleman,  however,  died  in  a  few  months,  and  again,  in 
1862,  the  same  Secretary  of  State  renewed  his  offer.  Maine 
took  counsel  with  his  friends,  and  I  for  one,  having  seen  the 
wretched  condition  of  mind  into  which  he  had  been  thrown 
by  feeling  himself  obliged  to  decline  the  former  offer,  strongly 
urged  him  to  go,  not  at  all  because  I  believed  that  his 
medical  advisers  were  mistaken,  but  because  I  thought  that 
he  would  infallibly  die  at  home,  and  that  it  would  be  a  great 
deal  better  for  him  to  die  in  much  prosperity  in  India  than  to 
die  in  great  adversity  in  England.  Never  was  a  presentiment 
more  delightfully  falsified.  He  came  back  on  six  months' 
leave,  after  two  years  and  a  half  spent  in  the  East,  looking 
infinitely  better  than  I  had  ever  seen  him  do,  and  so  little 
had  the  thread  of  his  European  life  been  broken  by  his 
absence  that,  as  he  declared,  a  friend  came  up  to  him,  the 
day  after  his  return,  in  the  Oxford  and  Cambridge  Club,  and 
renewed  the  conversation  which  had  been  interrupted  by  his 
departure  for  India. 

The  name  of  that  pleasant  institution  reminds  me  that 
during  the  years  which  immediately  preceded  the  time  of 
which  I  am  nov/  speaking,  Maine  was  a  faithful  frequenter  of 
the  Cosmopolitan,  then  in  its  earliest  youth,  but  which  has 
never,  I  think,  gathered  a  more  agreeable  company  than  it 
used  to  do  in  those  days.  It  was,  I  believe,  in  the  Sixties 
that  one  of  its  most  assiduous  votaries  said  to  the  writer  : 


DEPARTURE   FOR   INDIA  2$ 

'  I  have    seen    a   good    deal    of   Bohemia,  and    this    is    the 
pleasantest  bit  of  Bohemia  in  Europe.' 

In  the  spring  of  1862,  before  Maine  left  for  the  East,  he 
was  elected  a  member  of  the  Athenaeum  under  a  rale  which 
permits  nine  persons  of  eminence  to  be  added  to  that  club 
every  year  by  a  vote  of  the  committee,  which  must  be 
unanimous.  This  was  the  first  and  by  no  means  the  least 
acceptable  of  many  honours  of  the  kind  which,  as  we  shall 
see  later,  fell  to  his  lot. 

When  Maine  arrived  in  India,  Lord  Elgin  was  Viceroy, 
but  he  died  about  a  year  afterwards,  while  on  a  journey  in 
the  Himalayas,  and  was  succeeded  by  Sir  William  Denison, 
the  Governor  of  Madras,  who  '  acted  '  till  Sir  John  Lawrence 
arrived  from  England.  Maine's  period  of  office,  prolonged 
by  two  years  beyond  its  natural  termination,  covered  the 
whole  of  Sir  John  Lawrence's  Viceroyalty  and  extended  for 
some  way  into  that  of  Lord  Mayo.  With  each  of  these 
eminent  persons  he  got  on  extremely  well,  but  his  name  is 
hardly  mentioned  in  the  '  Life  of  Lord  Elgin  '  by  the  late 
Mr.  Theodore  Walrond  or  in  that  of  Lord  Lawrence  by  Mr. 
Bosworth  Smith.  In  Sir  William  Hunter's  '  Life  of  Lord 
Mayo'  there  is  a  very  long  letter,  of  eighty  octavo  pages, 
from  Sir  James  Stephen  to  Sir  W.  Hunter,  which,  although 
it  is  mainly  occupied  with  the  course  of  Indian  legislation  after 
Maine  returned  to  Europe,  throws  some  light  on  his  action 
as  Law  Member,  and  might  be  read  with  much  advantage  in 
connection  with  the  second  portion  of  this  volume. 

Like  all  sensible  men  in  India,  Maine  was  anxious,  when- 
ever he  could,  to  support  the  man  who  had  to  bear  the 
greatest  weight  of  responsibility  for  all  decisions,  and  he 
carried  the  same  habit  to  the  India  Office,  having  as  little 
of  the  frondeur  in  him  as  any  man  I  have  ever  known.  He 
confined  himself,  of  course,  chiefly  to  his  own  department,  but 
took  his  fair  share  in  matters  relating  to  General  Administra- 
tion when  it  was  rieht  to  do  so. 


24  MEMOIR   OF   SIR   HENRY   MAINE 

He  gave  the  Legislative  Department  its  present  shape, 
and  during  his  tenure  of  office  209  Acts  were  passed.  I 
copy  (with  some  amendments,  with  which  Mr.  Stokes  has 
kindly  supplied  me)  the  list  of  the  principal  ones,  which  was 
given  by  Sir  William  Hunter  in  a  pamphlet  published  soon 
after  Maine's  departure  from  India. 

1862-63 
The  Consolidated  Customs  Act. 
The  Merchant  Seamen's  Act. 
The  Act  constituting  Recorders'  Courts  in  British  Burma. 

1863-64 
The  Whipping  Act. 
The  Emigration  Act. 
The  Registration  of  Assurances  Act. 

1864-65 

The  Common  Carriers'  Act. 

The  Forest  Act. 

The  Law  of  Intestate  and  Testamentary  Succession. 

The  Criminal  Procedure  High  Courts  Act. 

The  Parsi  Marriage  Act. 

The  Pleaders'  and  Mukhtiars  Act. 

The  Parsi  Intestate  Succession  Act. 

1865-66 

The  Bills  of  Exchange  Act. 

The  Companies  Act. 

The  Post  Office  Act. 

The  Partnership  Act. 

The  Registration  of  Assurances  Act. 

The  Remarriage  of  Native  Converts  Act. 

1866-67 
Mortgagees'  and  Trustees'  Acts. 
The  Panjab  Murderous  Outrages  Act. 
The  Administrator-General's  Act. 

The  Act  for  the  regulation  of  Printing  Presses  and  the  Preserva- 
tion of  Books  printed  in  India. 
The  Stamp  Act. 


INDIA  25 

1867-68 

The  Contagious  Diseases  Act. 

Substitution  of  Stamps  for  Fees  in  High  Courts,  &c. 

The  Principal  Sadr  Ami'ns  and  Munsifs'  Act. 

1868-69 
The  Oudh  Rent  Law. 
The  Oudh  Taluqdars'  Act. 
The  Panjab  Tenancy  Act. 
The  Rural  Police  Act,  N.W.  Provinces. 
The  Divorce  Act. 
The  Indian  Articles  of  War. 

It  would  be  a  mistake  to  infer  from  the  large  number  of 
Acts  which  were  passed  in  his  time  that  Maine  was  a  great 
adept  in  the  art  of  drafting,  like  his  friend  and  contemporary 
Lord  Thring.  That  was  not  at  all  the  bent  of  his  genius. 
His  power  lay  in  seeing  very  quickly  what  ought  to  be  done 
in  the  way  of  legislation,  in  finding  out  who  were  the  proper 
men  to  assist  him  by  their  skill  in  manipulating  details,  in 
piloting  his  Bills  through  the  ordeal  of  Select  Committee  (the 
most  important  phase  in  the  genesis  of  an  Indian  Act),  and 
finally  in  carrying  it  safe  and  sound  through  the  Legislative 
Council.  How  admirably  he  set  about  this  last  portion  of 
his  work  the  speeches  contained  in  this  volume  will  very 
clearly  show. 

He  had  not  been  long  reader  at  the  Inns  of  Court  when, 
as  I  well  remember,  his  attention  was  attracted  by  the  very 
intelligent  questions  put  to  him  by  one  of  the  students  who 
attended  his  private  lectures.  This  gentleman  was  Mr. 
Whitley  Stokes,  who  had  been  a  pupil  of  Mr.  (afterwards 
Lord)  Cairns,  Mr.  Arthur  Cayley,  and  the  late  Mr.  Thomas 
Chitty,  and  who,  after  practising  for  a  short  time  at  the 
Chancery  Bar,  went  out  to  Madras,  remained  there  for  two 
years,  and  obtained  a  high  reputation.  In  the  year  1864 
Maine  invited  him,  for  the  second  time,  to  Calcutta,  where  he 
ultimately  became  Secretary  to  Government  in  the  Legislative 


26  MEMOIR   OF    SIR   HENRY   MAINE 

Department  and  Maine's  right-hand  man  in  the  drafting  of  all 
his  Bills.     At  a  considerably  later  period  the  proved  ability  of 
Mr.  Stokes  was  duly  recognised  by  his  becoming  himself  Law 
Member  of  Council  after  that  office  had  been  held  by  Lord 
Hobhouse,  and  before  it  was  filled  by  Mr.  Ilbert.     In  a  body 
like  the  Viceroy's  Legislative  Council  there  is  less  scope  for 
skilful  fence  in  debate  than  there  is  in  larger  assemblies,  but 
I   have  been  told  that  Maine  showed  no  want  of  debating 
power  if  the  '  occasion  sudden  '  chanced  to  arise,  a  fact  which 
is  all  the  more  creditable  as  he  had  but  little  opportunity  of 
studying  an  art  which  to  most  men  only  becomes  easy  after 
long  practice.     When  at   Cambridge  he  was  enrolled  as  a 
member  of  the  very  select  and  distinguished  body  commonly 
spoken  of  as  '  the  Apostles,'  but  I  never  heard  of  his  taking 
any  part  in  the  discussions  of  the  Union,  which  was  not  in  his 
time  an  institution  of  such  importance  as  it  was  in  the  days 
described  by  the  first  Lord  Lytton,  when — 

Every  week  that  club-room  famous  then 
Where  striplings  settled  questions  spoilt  by  men, 
When  grand  Macaulay  sat  triumphant  down, 
Heard  Praed's  reply,  and  long'd  to  halve  the  crown. 

I  never  happened  to  ask  Maine,  as  I  did  once  ask  Mr. 
Disraeli,  whether  he  had  belonged  to  debating  societies.  Pos- 
sibly he  might  have  given  the  same  answer  as  did  that  great 
master  of  his  weapon  :  '  No,  perhaps  it  would  have  been 
better  for  me  if  I  had — at  least  at  the  commencement  of 
affairs.' 

It  follows  from  what  I  have  said  that  a  very  good  idea  of 
Maine's  legislative  action  can  be  derived  from  such  a  collec- 
tion of  speeches  as  are  to  be  found  in  this  volume,  more 
especially  when  they  have  been  selected  and  annotated  by 
one  who  was  in  intimate  relation  with  him  during  so  large  a 
part  of  his  Indian  career. 

It  must  be  remembered,  however,  that  they  are  highly 
special,  emphatically  the  speeches  of  the  Law  Member  of  the 


INDIA  27- 

Governor-General's  Executive  Council  speaking  in  his  Legis- 
lative Council.  Every  layman  will  judge  them  according  to 
his  knowledge  of,  or  interest  in,  the  subjects  to  which  they 
relate,  and  I  could  do  nothing  more  than  call  attention  to 
such  passages  in  them  as  have  most  struck  me  individually. 
So  very  great  a  majority  of  them  relate  to  matters  as  to 
which  the  opinions  of  lawyers,  and  of  the  most  enlightened 
kind  of  lawyers,  alone  are  valuable,  that  it  is  by  the  judgment 
of  such  only  that  they  must  stand  or  fall. 

That  is  not  quite  so  with  the  Minutes.  Most  of  them,  no 
doubt,  relate  also  to  legal  matters,  but  some  others  relate 
to  the  ordinary  work  of  Indian  government,  and  having 
had  considerable  experience  of  such  documents,  I  think  I 
may  venture  to  pronounce  not  a  few  of  these  to  be  very 
good. 

I  may  cite  as  specimens  the  Minute  on  the  Ambeyla 
Campaign,  that  on  the  Study  of  Persian,  that  on  the  Decen- 
tralisation of  Finance,  the  two  very  important  State  papers  of 
February  27  and  March  16,  1867,  on  the  Bengal  Legislative 
Council,  those  on  the  question  of  the  Capital  of  India,  the 
Migration  to  Simla,  and  other  cognate  subjects.  Other 
examples  are  the  Minutes  on  the  Panjab  University,  on  the 
Salt  Duty,  on  the  '  Educational  Service '  as  it  was  in  1864,  and 
on  Occupancy  Rights  in  the  Panjab  in  1866. 

Maine's  indirect  influence,  however,  in  things  Indian  was 
hardly  less  powerful  than  his  direct  influence.  Some  very 
weighty  remarks  of  Sir  Alfred  Lyall's  should  be  read  in  this 
connection.  They  appeared  in  the  '  Law  Quarterly  Review ' 
very  shortly  after  the  death  of  him  who  was  their  subject. 

*  His  method,  his  writings,  and  his  speeches  at  the  Indian 
Council  Board  have  had  a  strong  and  lasting  effect  upon  all 
subsequent  ways  of  examining  and  dealing  with  these  subjects, 
whether  in  science  or  practical  politics.  He  possessed  an 
extraordinary  power  of  appreciating  unfamiliar  facts  and 
apparently  irrational  beliefs,  of  extracting  their  essence  and 


-28  MEMOIR   OF   SIR   HENRY   MAINE 

the  principle  of  their  vitality,  of  separating  what  still  has  life 
and  use  from  what  is  harmful  or  obsolete,  and  of  stating  the 
result  of  the  whole  operation  in  some  clear  and  convincing 
sentence. 

*  In  a  very  sympathetic  notice  of  Sir  Henry  Maine,  which 
appeared  in  the  "  Saturday  Review,"  it  is  mentioned  that  he 
could  read  a  thick  volume  in  such  a  way  as  to  appropriate 
what  concerned  him  in  it,  while  an  ordinary  man  read  a 
hundred  pages.  In  just  such  a  swift  and  penetrating  spirit 
he  seems  to  have  read  India,  the  sacred  literature,  the  pon- 
derous histories,  the  innumerable  volumes  of  official  records, 
and  the  heavy  bundles  of  papers  that  came  before  him  as  a 
member  of  the  Government.  He  could  throw  a  succession 
of  rapid  glances  over  its  diversified  social  and  political  for- 
mation ;  and  his  remarkably  accurate  apprehension  of  its 
salient  features  commanded  the  admiration  of  all  who  knew 
the  difficulty  of  such  intellectual  exploits.  The  local  expert 
who,  after  years  of  labour  in  the  field  of  observation,  found 
himself  with  certain  indefinite  impressions  of  the  meaning  or 
outcome  of  his  collected  facts,  often  found  the  whole  issue  of 
the  inquiry  exactly  and  conclusively  stated  in  one  of  Maine's 
lucid  generalisations.  Or  else  a  suggestion  thrown  out,  or  a 
line  of  research  indicated,  would  set  the  explorer  on  the  right 
course,  and  show  the  real  scope  of  the  induction.  And  while 
he  thus  cast  into  orderly  form  a  jumble  of  facts,  or  pointed 
with  his  divining  rod  to  the  sources  of  discovery,  he  never  made 
the  mistake  of  employing  the  incoherent,  changeable  and 
inconsistent  notions  of  primitive  people  to  build  up  clear-cut 
positive  theories.  To  such  theories,  which  are  epidemic  in  India, 
he  invariably  applied  the  tests  of  actual  evidence  and  com- 
parative experience  ;  he  gave  to  fictions  their  proper  place  and 
value  ;  and  by  detaching  what  was  fit  to  survive  from  what  had 
lost  its  reason  of  existence,  he  did  much  towards  reconstructing 
the  whole  history  of  early  Indian  institutions  on  the  basis  most 
favourable  for  preserving  their  modified  continuity. 

'  The  problem  that  has  been  for  the  last  thirty  years  before 
the  English  Government  of  India  is  the  adjustment  of  the 
mechanism  of  a  modern  State  to  the  habits  and  feelings  of  a 
vast    mixed    multitude  in  various  stages  of  what  we  have 


INDIA  29- 

decided  to  call  Progress.  In  such  a  period  of  unusually  rapid 
transition  Maine's  instinct  of  discernment  and  skill  in  adapta- 
tion were  most  valuable.  A  great  quantity  of  writing  about 
India,  and  much  of  what  has  been  done  in  India,  is  necessarily 
founded  upon  guess-work  and  half-knowledge,  which  accounts 
for  much  hazardous  speculation  in  the  departments  of  thought 
and  action.  Moreover,  the  Oriental  contempt  of  qualified 
statements  and  of  limitations,  whether  in  time  or  space,  is  apt 
to  be  contagious  among  all  who  have  to  do  with  Eastern  law 
or  literature  ;  local  characteristics  are  treated  as  universal  ; 
castes  and  creeds  as  immutable  ;  the  scanty  data  massed  in 
this  fashion  are  piled  up  into  wide  and  lofty  inductions.  Sir 
Henry  Maine's  large  and  accurate  intelligence  enabled  him 
to  detect  and  point  out  these  snares  and  delusions,  which 
have  more  or  less  encompassed  all  previous  English  writers 
and  politicians  in  their  treatment  of  peculiarly  Indian  ques- 
tions. To  pass  over  earlier  examples,  I  may  suggest  that  if 
anyone  desires  to  measure,  in  literature,  the  difference  between 
the  generalisations  of  a  man  of  literary  talent  and  a  man  of 
genius,  he  should  set  Buckle's  well-known  demonstrations 
regarding  Indian  society  and  religions  side  by  side  with 
Maine's  conclusions  on  the  same  matters  ;  conclusions  so 
cautiously  stated,  yet  so  full  of  life  and  fecundity.  The 
former  writer  went  wrong  in  premisses  and  process,  in  his  facts 
and  his  inferences  ;  the  latter  makes  each  fact  ring  true  before 
he  passes  it,  analyses  and  classifies,  draws  his  analogies  with 
the  prudence  of  Bishop  Butler,  and  finally  sets  out  the  real 
import  of  the  phenomenon  under  scrutiny  in  a  manner  that 
gives  a  firm  foothold  for  further  advance.  A  certain  number 
of  passages  might  be  cited  from  his  w^orks  that  have,  perhaps, 
done  more  to  arrange  and  extend  our  ideas  upon  the  past  and 
present  constitution  of  Indian  societies  than  anything  else- 
where written  on  the  subject.' 

Before  Maine  had  been  very  long  in  India  he  was  appointed 
Vice-Chancellor  of  the  University  of  Calcutta,  and  he  delivered 
in  that  capacity  four  addresses  to  the  graduates  which  were 
not  surpassed  by  anything  he  ever  wrote.  The  first  three 
were  published  in  the  second  edition  of  his  '  Village  Com- 


30  MEMOIR   OF   SIR   HENRY   MAINE 

munities;'  the  fourth  was  not  pubHshed  because,  I  suppose, 
a  good  deal  of  it  was  used  up  by  himself  in  subsequent  com- 
positions, as,  for  instance,  in  his  Rede  lecture,  to  be  mentioned 
farther  down,  which  contains  probably  the  most  often  quoted 
phrase  of  which  he  was  the  author  : 

'  Except  the  blind  forces  of  Nature,  nothing  moves  in  this 
world  which  is  not  Greek  in  its  origin.' 

That  originally  formed  part  of  the  unpublished  address. 

In  December  1868,  I  became  Under-Secretary  of  State 
for  India,  and  for  the  next  few  months  my  correspondence 
with  Maine  was  naturally  pretty  brisk.  His  letters,  however, 
dealt  almost  exclusively  with  current  business,  discussing  the 
details  of  such  measures  as  the  Government  of  India  Bill,  of 
which  I  had  charge  in  the  House  of  Commons,  explaining  the 
differences  between  himself  and  the  Indian  Law  Commission, 
with  numerous  other  matters,  very  important  to  us  both  at 
the  time,  but  now  as  dead  as  the  Pharaohs.  I  have  looked 
through  the  whole  file  without  finding  anything  that  could  be 
published  with  advantage  to  any  creature,  unless  indeed  it  be 
a  single  paragraph — to  be  taken,  no  doubt,  cum  grano  salis — in 
which  he  recounts  the  fate  of  a  Bengali  schoolmaster  who  was 
sent  to  take  charge  of  a  school  in  the  Garo  hills.  The  ex- 
periment, as  might  have  been  expected,  was  not  brilliantly 
successful,  for  his  pupils  barred  him  out  the  first  day,  and 
ate  him  the  second. 

Members  of  the  Viceroy's  Council  and  of  the  councils  of 
the  Governors  of  Madras  and  Bombay  are  for  the  most  part 
officials  who  have  risen  through  the  various  ranks  of  Anglo- 
Indian  society,  and  who  keep  establishments  large  in  propor- 
tion to  their  emoluments.  Maine  could  not  conveniently 
have  followed  this  example,  for  his  wife's  health  prevented 
her  accompanying  him  to  India,  and  he  could  not  without 
infinite  trouble  have  managed  the  sort  of  household  which  a 
man  in  his  high  position  usually  has  in  that  country. 


INDIA  31 

He  lived,  accordingly,  the  life  of  a  bachelor  ;  but  of  a  very 
hospitable  member  of  that  brotherhood.  His  breakfasts,  over 
which  a  lady  whose  many  gifts  have  made  her  well  known  in 
London,  as  of  old  in  Calcutta  society,  usually  presided,  were 
especially  famous. 

He  never  cared  much  for  society,  commonly  so  called,  at 
any  time  or  in  any  country  ;  but  in  India  he  had,  of  course, 
the  opportunity  of  picking  the  brains  of  a  great  many  exceed- 
ingly able  men,  from  Sir  John  Lawrence  downwards,  and  of 
their  conversation  the  works  which  he  published  after  his 
return  to  Europe  bear  constant  traces. 

To  some  persons,  transplanted  suddenly  from  what  Dr. 
Parr  called  the  '  plena  lux  Londinensis '  to  our  great  Asiatic 
dependency,  the  perpetual  strangeness  of  all  that  surrounds 
them,  the  forms  and  colours,  the  glory  of  the  vegetation,  the 
interest  of  the  animal  life,  are  compensations  for  a  great  deal 
they  leave  behind  ;  but  this  was  not  the  case  with  Maine. 
He  cared  as  little  for  external  nature  as  anyone  I  have  ever 
known.  He  would  not,  indeed,  have  gone  quite  so  far  as 
did  his  financial  colleague,  Mr.  Massey,  who,  he  declared, 
once  replied  to  a  lady  in  Calcutta,  who  said,  '  But  surely,  at 
least  the  flowers  in  India  give  you  pleasure?'  'No,  they 
don't :  they  are  the  only  things  in  the  country  which  do  not 
smell.'  A  more  unjust  slander  upon  countless  meritorious 
vegetables  which  fill  a  well-kept  Indian  garden,  or  are  to  be 
found  growing  wild  by  those  who  care  to  open  their  eyes  or 
their  nostrils,  was  never  uttered.  Maine  would  not  have 
slandered  them,  but  I  fear  they  added  little  to  the  happiness 
of  his  life. 

He  ended  his  Indian  career  with  all  the  honours.  The 
Viceroy  moved,  and  his  colleagues  unanimously  passed,  the 
following  resolution  :  — 

'  This  Council,  entertaining  a  high  sense  of  the  conspicuous 
ability  displayed  by  Mr.  H.  S.  Maine,  during  the  time  that 
he  held  office  as  Law  Member  of  the  Council  of  the  Governor- 


32 


MEMOIR   OF   SIR   HENRY   MAINE 


General,  hereby  expresses  to  him  its  cordial  thanks  for  his 
long,  faithful,  and  valuable  service,  its  deep  regret  at  his  depar- 
ture, and  hearty  wishes  for  his  future  welfare  and  happiness/ 

In  bringing  it  forward,  Lord  Mayo  observed,  mter  alia, 
with  reference  to  Maine's  services  to  education  : — 

'  In  all  the  discussions  that  took  place  during  his  tenure 
of  office  on  that  interesting  and  all-important  question,  his 
opinions,  delivered  with  great  authority  and  weight,  were 
esteemed  and  valued  by  all  classes  in  this  country ;  and  his 
eloquent  addresses  during  the  three  years  that  he  filled  the 
office  of  Vice-Chancellor  of  the  Calcutta  University  are  not 
among  the  least  of  his  public  services,  and  will  long  be 
remembered  by  the  youths  of  Bengal. 

'  But  it  was  not  only  as  a  legislator  and  a  philanthropist 
that  Mr.  Maine  was  enabled  to  perform  great  service  to  the 
State.  In  the  Executive  Council  of  the  Empire  he  was  always 
found  a  wise  councillor,  an  impartial  adviser,  and  a  minister 
of  originality,  sagacity,  and  resource. 

'  In  common  with  the  rest  of  his  colleagues,  I  deeply 
deplore  his  loss,  for  I  always  found  him  ready  to  labour  on 
any  subject  or  in  any  matters,  even  though  not  directly  con- 
nected with  his  department,  in  which  his  assistance  was 
required  ;  and  I  am  sure  my  colleagues  will  agree  with  me 
that  his  genial  temper,  his  deference  to  the  opinions  of  others, 
his  modesty  and  forbearance,  and  the  interesting  way  in 
which  he  always  advanced  or  elucidated  his  opinions,  made  a 
discussion  with  him  on  difficult  and  important  matters  as 
agreeable  as  it  was  instructive. 

'  He  has  departed  from  among  us,  but  we  may  hope  that, 
as  he  is  still  young  and  strong,  so  much  knowledge  and  so 
much  experience  will  not  be  lost  to  India.  He  never  informed 
me  of  his  intentions  as  to  his  future  career.  I  know  little  of 
his  aspirations  or  of  his  wishes.  It  is  quite  possible  that,  after 
so  many  years  of  labour  in  this  climate,  he  may  naturally 
wish  for  comparative  repose.  But  I  am  sure  I  only  express 
the  unanimous  opinion  of  this  Council  in  saying  that,  whether 
it  be  in  the  Senate,  the  Council,  or  on  the  Judicial  Bench  at 
Home,  the  Indian  public  will  still  hope  for  a  continuance  of 


INDIA  33 

those  services  from  which  it  has  already  so  much  benefited  ; 
and  we  may  be  sure  that,  whatever  sphere  he  may  select  for 
active  exertion,  the  influence  of  his  jrrcat  experience,  learning, 
and  eloquence  will  be  strongly  felt  and  will  ever  be  exercised 
for  good. 

'  Gentlemen,  I  am  aware  how  inadequate  are  the  terms  in 
which  I  have  endeavoured  to  recommend  this  resolution  to 
your  consideration,  and  that  what  I  have  said  is  hardly 
worthy  of  the  conspicuous  public  services  I  have  endeavoured 
to  describe,  I  feel  that  anything  that  may  be  spoken  of  him 
to-day  will  add  little  to  his  character  or  to  his  fame  ;  but  we 
may  be  content  to  know  that  the  best  and  most  lasting 
records  of  his  long  and  able  service  will  be  found  in  those 
wise  laws  which,  under  his  auspices,  were  placed  on  our 
statute  book,  in  the  eloquent  addresses  delivered  in  this 
Chamber — which,  by  the  happy  intervention  of  the  press,  have 
been  preserved  and  given  to  the  public — and  in  those  numerous 
and  able  documents  which  have  issued  from  his  pen,  and 
which  now  comprise  so  valuable  a  portion  of  Indian  political 
literature.' 

Mr.  Cowie  bore  testimony  to  the  great  value  of  the  mercan- 
tile legislation  that  had  been  passed  during  Maine's  tenure 
of  office,  enumerating  the  consolidation  of  the  law  as  to  Sea 
Customs,  the  Act  defining  the  rights  and  liabilities  of  Common 
Carriers,  the  Companies  Act,  the  General  Stamp  Act,  and 
various  Acts  relating  to  Bills  of  Exchange,  Policies  of  In- 
surance, &c. 

In  the  course  of  a  speech  of  considerable  length  Sir  John 
Strachey  said  : — 

'Although,  my  lord,  I  cannot  now  attempt  to  detail  the 
many  claims  which  Mr.  Maine  possesses  to  our  grateful  _  and 
admiring  recollection,  there  is  one  other  branch  of  his  public 
services  in  India  to  which  your  Excellency  has  referred,  and 
which  I  must  briefly  notice — the  services  which  he  performed 
as  Vice-Chancellor  of  the  Calcutta  University.  That  the 
author  of  "  Ancient  Law  "  was  no  less  eminent  for  his  literary 
acquirements  and  ability  than  for  his  knowledge  as  a  jurist  it 

D 


34  MEMOIR   OF   SIR   HENRY   MAINE 

is  hardly  necessary  for  me  to  say,  and  his  scholastic  experience,, 
his  learning,  and  his  broad  and  sound  views  as  to  the  true 
objects  and  scope  of  study  will,  I  am  convinced,  be  found  to 
have  produced  a  lasting  effect  on  the  progress  of  education  in 
this  country.  The  key-note  of  those  brilliant  addresses  to  the 
Calcutta  University  which  signalised  Mr.  Maine's  tenure  of 
office  was  this  :  That  the  object  of  all  study  is  to  attain  a 
knowledge  of  the  truth  ;  that  truth,  whether  in  relation  to  the 
external  world  and  its  phenomena,  or  to  human  nature  and 
society,  and  the  feelings  and  influences  under  which  they  act, 
must  conform  to  the  same  general  conditions  ;  and  that  the 
teaching  of  all  true  science,  to  whatever  it  be  applied,  is  (to 
use  Mr.  Maine's  own  words)  "  continuous  sequence,  inflexible 
order,  and  eternal  law."  He  warned  us  in  eloquent  language 
that  the  genuineness  of  knowledge  is  the  one  essential  con- 
sideration, and  that  the  merely  literary  form  in  which  know- 
ledge is  conveyed  is,  in  itself,  a  small  matter.  Never,  he 
maintained,  under  any  guise  of  Oriental  culture  or  otherwise, 
must  we  teach  that  which  is  not  true.  Attention  to  these 
fundamental  principles  has  nowhere  been  more  required 
than  in  India,  and  at  no  time  is  it  more  required  than  at 
present.  By  no  one  have  these  principles  been  more  clearly 
or  more  forcibly  enunciated  than  by  Mr.  Maine,  and  it  will 
be  well  for  the  cause  of  education  in  India  if  we  follow  his 
weighty  counsels. 

'  But,  my  lord,  while  we  regret  Mr.  Maine's  departure,  we 
may,  I  think,  have  the  satisfaction  of  feeling  that  his  career, 
unlike  that  of  many  of  the  distinguished  men  who  leave 
India,  is  not  closed.  England  is  at  last  beginning  to  recog- 
nise the  evils  of  her  shapeless  legal  system,  and  to  see  the 
necessity  of  digesting,  and  ultimately  of  codifying,  that 
enormous  mass  of  statutes,  precedents,  dicta  and  rules  of 
practice  which  constitute  the  bulk  of  her  law.  In  helping  on 
this  work,  Mr.  Maine's  learning  and  experience  would  be 
especially  valuable. 

'  There  are  other  ways  in  which  he  may  render  services 
perhaps  still  more  useful  to  his  science,  to  England,  and  to  India. 

'  In  his  "  Ancient  Law "  Mr.  Maine  has  shown  that  the 
inductive  method  is  the  only  way  to  attain  clear  notions  as 


INDIA  35 

to  the  origin  of  those  elementary  legal  conceptions  which  are 
incorporated  into  our  social  system  ;  and  the  primeval  insti- 
tutions and  customs  of  India  which  have  been  handed  down, 
almost  unchanged,  to  the  present  generation — such  as  the 
village  community,  the  undivided  family,  the  practice  of 
adoption  taking  the  place  of  testation — furnished  him  with 
admirable  subjects  for  the  application  of  that  method.  The 
extended  knowledge  and  experience  which  Mr.  Maine's 
residence  in  India  has  given  him  will  enable  him  to 
pursue  with  increased  power  his  scientific  researches,  and  we 
may  hope  that  he  will  be  able,  from  the  chair  which  he  is 
expected  to  fill  at  Oxford,  to  impart  to  the  youth  of  England, 
not  only  correct  principles  of  jurisprudence,  but  to  extend 
that  intelligent  and  unselfish  interest  which  the  best  minds  in 
England  are  beginning  to  take  in  this  country  and  its  history 
and  institutions,  and  to  diminish  the  contempt  and  dislike 
which,  as  between  nations,  are  almost  always  due  to  ignor- 
ance alone.  We  may  hope,  too,  that  Mr.  Maine's  teaching 
may  have  a  yet  wider  range  ;  that  the  beneficial  influence  of 
his  scientific  and  philosophical  mind  may  extend  beyond 
questions  affecting  the  conditions  of  any  single  human  society, 
or  the  relations  of  two  countries  such  as  England  and  India, 
and  may  reach  that  almost  unbroken  field  of  International 
Law  to  which  he  has  already  given  so  much  of  his  attention. 
If  there  be  any  man  able  to  fix  the  true  principles  of  this 
most  important  of  all  branches  of  jurisprudence,  that  man  is 
Mr.  Maine. 

'  It  would  be  a  worthy  conclusion  to  his  labours  to  lay  the 
foundations  ^  for  that  complete  respect  for  the  authority  of 
such  law  which  Whewell  reckoned  among  the  most  hopeful 
avenues  to  that  noble  ideal,  a  perpetual  peace ;  "  the  most 
hopeful,"  he  says,  "  because  along  this  avenue  we  can  already 
see  a  long  historical  progress,  as  well  as  a  great  moral  aim." ' 

Major-General  the  Honourable  Sir.  Henry  Durand  said 
that— 

'  In   the    spirit  of  the  resolution    before  the  Council,  he 

'  How  strangely  this  aspiration  was  fulfilled  we  shall  see  on  a  later  page  of 
this  memoir. 


I 


36  MEMOIR   OF   SIR   HENRY   MAINE 

wished  to  say  a  few  words  on  a  point  which  was  adverted  to 
by  the  Honourable  Mr.  Strachey,  and  which  might  not  be  well 
known  by  the  public — in  fact  could  not  be  well  known — namely, 
the  great  use  of  which  Mr.  Maine  had  been  during  the  ad- 
ministrations of  Lord  Elgin  and  Sir  John  Lawrence  ;  and  his 
Excellency  the  President  knew  best,  in  connection  with  his 
own  administration,  the  immense  service  which  Mr.  Maine's 
opinions  were  in  that  particular  department  which  is  called 
International  Law.  Questions  of  International  Law  in  this 
country  did  not  come  before  us  in  that  simplicity  of  form  in 
which  they  came  before  European  nations  of  co-equal  powers 
and  rights.  His  Excellency  was  quite  aware  how  nice  and 
delicate  were  the  points  of  such  law  which  arose  here  between 
the  dependent  States  of  this  Empire  and  the  supreme  authority. 
Sir  Henry  Durand  could  not  enter  into  any  detail  by  way  of 
exemplification  ;  the  cases  were  so  numerous  that  it  would  be 
difficult  to  select  an  example.  Yet  he  might  say  that  Mr. 
Maine  was  ever  ready  at  all  times  to  give  the  fullest  con- 
sideration and  the  best  advice  with  reference  to  these  questions. 
He  felt  that  it  was  due  to  Mr.  Maine  to  say  that  he  was 
something  more,  and  in  fact  a  great  deal  more,  than  an 
ordinary  jurist.  As  a  jurisconsult  having  to  deal  with  the 
most  complicated  and  difficult  questions,  there  was  no  man 
more  fitted  than  Mr.  Maine  to  solve  the  problems  of  Inter- 
national Law  which  constantly  came  up  for  decision  under 
the  administrations  during  which  Mr.  Maine  was  a  member 
of  the  Government ;  and  the  obligation  of  the  Government  to 
Mr.  Maine  on  account  of  the  part  he  had  taken  in  that  large 
and  anomalous  class  of  questions  was  really  almost  beyond 
•calculation.' 

Maine  returned  from  India  in  1869  looking  twice  the  man 
he  was  seven  years  before,  and  soon  fell  back  into  his  old 
life  with  his  family  and  friends.  It  was  not  long,  however, 
that  he  was  allowed  a  perfect  holiday,  for  he  was  soon  offered 
the  Corpus  Professorship  of  Jurisprudence  which  had  just 
been  founded  at  Oxford.  It  was  there  that  he  delivered  the 
six  lectures  which  were  published  in  1871  under  the  title  of 
'  Village  Communities,'     He  took  me  down  to  be  present  at 


RETURN  TO  EUROPE— OXFORD  37 

one  of  these  lectures,  anxious,  I  think,  to  hear  from  an  old 
pupil  who  had,  as  he  knew,  been  one  of  the  warmest  admirers 
of  those  he  had  given  many  years  before  at  the  Middle 
Temple,  whether  India  had  abated  any  of  his  vigour.  I  could 
most  conscientiously  say  that  it  had  not.  His  voice  was  as 
strong,  his  sentences  as  clear-cut,  and  the  arrangement  of  his 
material  quite  as  good  as  ever. 

He  did  not  originally  intend  to  publish  these  lectures  by 
themselves,  but  it  appeared  to  some  of  his  audience  that  they 
would  be  useful  to  persons  who  were  engaged  in  somewhat 
similar  studies  based  upon  the  investigations  of  certain 
German  scholars  who  were  then  beginning  to  be  read  in 
England,  more  especially  Nasse  and  G.  L.  von  Maurer.  In 
the  third  and  fifth  lectures,  the  conclusions  of  these  writers 
are  briefly  summarised.  His  Indian  data  were  drawn  partly 
from  the  store  of  facts  which  he  had  gradually  accumulated 
while  he  was  dealing  practically  with  the  actual  wants  of 
India  as  a  legislator,  and  partly  from  the  conversation  of 
Lord  Lawrence,  an  admirable  authority  on  all  that  related  to 
Native  usage  in  the  districts  in  which  he  had  spent  the  first 
half  of  his  long  and  brilliant  career.  Maine  had  further  the 
advantage  of  being  allowed  to  submit  his  conclusions  on  all 
that  related  to  India  to  Sir  George  Campbell,  who  was  at  that 
time  Lieutenant-Governor  of  Bengal,  and  whose  failure  in  a 
career  for  which  he  was  pre-eminently  unfitted — that  of  a 
private  member  of  the  House  of  Commons — should  not 
blind  his  countrymen  to  the  truth  that  he  was  possessed 
of  great  knowledge  and  remarkable  administrative  capa- 
city. Whatever  he  had  to  say  about  India — and  he  wrote  a 
great  deal  about  it  at  different  periods  of  his  career — was 
always  worth  considering,  and,  oftener  than  not,  exceedingly 
valuable. 

Appearing,  as  Maine's  new  venture  did,  soon  after  the 
long  controversy  which  ended  in  Mr.  Gladstone's  first  Irish 
Land  Bill  was  brought  to  a  conclusion — speedily,  alas  !  to  be 


38  MEMOIR   OF   SIR   HENRY   MAINE 

overthrown — it  attracted  a  good  deal  of  attention  even  beyond 
Indian  circles  or  professed  students  of  agrarian  law,  and  a 
distinguished  lawyer,  who  is  happily  still  among  us,  gave 
the  name  of  Maine's  Village  Community  to  Cornwall  Gardens 
and  its  neighbourhood,  which  was  an  orchard  when  he  was 
preparing  to  go  to  India,  but  was  covered  with  houses  when 
he  returned  to  this  country,  and  was  inhabited  by  half  the 
people  who  were  then  controlling  the  Government  of  our 
Eastern  Empire.  Now  I  suppose  the  book  has  fewer 
readers,  but  it  is  full  of  observations  which  appeal  to  all 
intelligent  men,  however  little  direct  interest  they  may  have 
in  India. 

Here  is  a  specimen  : 

'When,  in  truth,  we  have  to  some  extent  succeeded  in 
freeing  ourselves  from  that  limited  conception  of  the  world 
and  mankind,  beyond  which  the  most  civilised  societies  and 
(I  will  add)  some  of  the  greatest  thinkers  do  not  always  rise  ; 
when  we  gain  something  like  an  adequate  idea  of  the  vastness 
and  variety  of  the  phenomena  of  human  society  ;  when  in 
particular  we  have  learned  not  to  exclude  from  our  view  of 
the  earth  and  man  those  great  and  unexplored  regions  which 
we  vaguely  term  the  East ;  we  find  it  to  be  not  wholly  a 
conceit  or  a  paradox  to  say  that  the  distinction  between  the 
present  and  the  past  disappears.  Sometimes  the  past  is  the 
present ;  much  more  often  it  is  removed  from  it  by  varying 
distances,  which,  however,  cannot  be  estimated  or  expressed 
chronologically.  Direct  observation  comes  thus  to  the  aid 
of  historical  inquiry,  and  historical  inquiry  to  the  help  of 
direct  observation.' 

Here  is  another : 

'  Every  man  is  under  a  temptation  to  overrate  the  im- 
portance of  the  subjects  which  have  more  than  others  occupied 
his  own  mind,  but  it  certainly  seems  to  me  that  two  kinds  of 
knowledge  are  indispensable,  if  the  study  of  historical  and 
philosophical  jurisprudence  is  to  be  carried  very  far  in 
England  ;  knowledge  of  India  and  knowledge  of  Roman  Law 


'VILLAGE   communities'  39 

— of  India,  because    it  is  the  great  repository  of  verifiable 
phenomena  of  ancient  usage  and  ancient  juridical  thought ; 
of  Roman  Law,  because,  viewed  in  the  whole  course  of  its 
development,  it  connects  these  ancient  usages  and  this  an- 
cient juridical  thought  with  the  legal  ideas  of  our  own  day. 
Roman  Law  has  not,  perhaps,  as  evil  a  reputation  as  it  had 
ten  or  fifteen  years  ago,  but  proof  in  abundance  that  India  is 
regarded  as  supremely  uninteresting  is  furnished  by  parlia- 
ment, the    press,  and  popular  literature.     Yet    ignorance  of 
India   is    more  discreditable  to  Englishmen  than  ignorance 
of  Roman  Law,  and  it  is  at  the  same  time  more  unintelligible 
in  them.     It  is  more  discreditable,  because  it  requires  no  very 
intimate  acquaintance  with  contemporary  foreign  opinion  to 
recognise  the  abiding  truth  of  De  Tocqueville's  remark  that 
the  conquest  and  government  of  India  are  really  the  achieve- 
ments in  the  history  of  a  people  which  it  is  the  fashion  abroad 
to    consider    unromantic.       The    ignorance  is    moreover  un- 
intelligible, because  knowledge   on  the  subject  is  extremely 
plentiful   and  extremely  accessible,  since  English  society  is 
full  of  men  who  have  made  it  the  study  of  a  life  pursued  with 
an  ardour  of  public  spirit  which  would  be  exceptional  even 
in  the  field  of  British  domestic  politics.     The  explanation  is 
not,  however,   I  think,  far  to  seek.      Indian  knowledge  and 
experience  are  represented  in  this  country  by  men  who  go  to 
India  all  but  in  boyhood,  and  return  from  it  in  the  maturity 
of  years.     The  language  of  administration  and  government 
in    India    is    English,  but    through    long  employment   upon 
administrative  subjects  a  technical  language  has  been  created, 
which  contains  far  more  novel  and  special  terms  than  those  who 
use  it  are  commonly  aware.    Even,  therefore,  if  the  great  Indian 
authorities  who  live  among  us  were  in  perfect  mental  contact 
with  the  rest  of  the  community,  they  could  only  communicate 
their  ideas  through  an  imperfect  medium.     But  it  may  be 
even  doubted  whether  this  mental  contact  exists.     The  men 
of  whom  I  have  spoken  certainly  underrate  the  ignorance  of 
India  which  prevails  in  England  on  elementary  points.      If  I 
could  suppose  myself  to  have  an  auditor  of  Indian  experience,  I 
should  make  him  no  apology  for  speaking  on  matters  which 
would  appear  to  him  too  elementary  to  deserve  discussion  ; 


40  MEMOIR   OF   SIR   HENRY   MAINE 

since  my  conviction  is  that  what  is  wanting  to  unveil  the 
stores  of  interest  contained  in  India  is,  first,  some  degree  of 
sympathy  with  an  ignorance  which  very  few  fehcitous  efforts 
have  yet  been  made  to  dispel,  and,  next,  the  employment  of 
phraseology  not  too  highly  specialised.' 

In  1 87 1  Maine  published  in  the  '  Cornhill  Magazine'  a 
very  excellent  review  of  Mr,  (now  Sir)  William  Hunter's  work 
on  our  '  Indian  Mussulmans.'  It  dealt  with  the  Wahabi 
movement,  then  very  interesting,  and  concludes  with  a  story 
which  he  was  fond  of  repeating  : 

'  No  book,'  he  observes,  '  illustrates  more  vividly  than  that 
before  us  the  difficulties  of  that  most  extraordinary  of  ex- 
periments, the  British  Empire  in  India.  So  far  as  they  here 
appear,  they  may  be  summed  up  in  the  remark  that  the 
Anglo-Indian  Government  is  bound,  by  the  moral  conditions 
of  its  existence,  to  apply  the  modern  principle  of  equality,  in 
all  its  various  forms,  to  the  people  of  India — equality  between 
religions,  equality  between  races,  equality  between  individuals, 
in  the  eye  of  the  law.  But  it  has  to  make  this  application 
among  a  collection  of  men  (a  community  they  can  hardly  be 
called)  to  whom  the  very  idea  of  equality  is  unknown  or 
hateful.  All  Mahometans  are,  indeed,  equal  theoretically 
among  themselves,  but  their  equality  has  for  its  indispens- 
able basis  the  absolute  subjection  of  everybody  else.  What 
Hindus  think  of  equality  among  men  will  best  be  gathered 
from  an  anecdote.  A  Brahman  lawyer  in  great  practice  was  a 
year  or  two  seeking  to  establish  himself  in  the  good  graces  of 
an  Anglo-Indian  functionary  by  enlarging  on  the  value  of 
Bentham's  philosophy,  in  so  far  as  it  placed  the  standard  of 
law  and  morals  in  the  greatest  happiness  of  the  greatest 
number.  The  Englishman  expressed  some  surprise  that  the 
principle  should  be  so  much  applauded  in  a  country  like  India. 
"  No  doubt,"  rejoined  the  high-caste  Hindu,  after  a  glance 
round  the  room  to  assure  himself  that  nobody  was  within 
earshot,  "  no  doubt  it  is  one  difficulty  that,  according  to  my 
religion,  a  Brahman  is  entitled  to  exactly  five-and-twenty 
times  as  much  happiness  as  anybody  else  !  " ' 


THE   INDIA   OFFICE  4 1 

In  May  1871,  Maine  was  gazetted  a  K.C.S.I.,  and  in  the 
November  of  the  same  year  the  Duke  of  Argyll  offered  him 
a  seat  on  the  Council  of  the  Secretary  of  State  for  India. 

He  naturally  took  most  interest  in  the  judicial  department 
of  the  India  Office,  and  soon  made  himself  a  power  in  all  that 
related  to  it.  He  did  not  speak  much  in  Council,  though  when 
he  did  he  was  at  least  as  effective  as  any  other  member  of 
that  body.  Among  the  oldest  of  his  colleagues  there  were  at 
that  time  some  men  of  great  ability,  such  as  Sir  Frederick 
Halliday,  whose  powers  even  when  he  retired  years  after  the 
period  of  which  I  am  writing,  at  the  age  of  eighty,  would  have 
justified  his  sitting  in  any  Council  or  Cabinet  of  the  world  ; 
but  there  were  others  who  were  far  past  their  best,  and  who 
tried  to  persuade  themselves  by  too  frequent  speaking  that 
their  minds  were  as  active  as  ever.  An  able  man,  accord- 
ingly, who  spoke  rarely  and  always  voted  right,  was  a  great 
treasure. 

Maine,  Mallet,  and  Frere  were  the  three  councillors  who 
took  the  most  sustained  interest  in  the  parliamentary  side  of 
Indian  affairs  while  the  Duke  of  Argyll  continued  Secretary 
of  State — that  is,  from  December  1 868  to  the  spring  of  1 874. 

The  work  of  the  Indian  Council,  which  is  essentially  a  re- 
vising not  an  originating  body,  rarely  comes  before  the  public 
in  this  country,  or  would  be  read  by  one  in  half  a  million  if  it 
did,  and  the  work  done  by  its  individual  members  is  seldom 
identified  even  in  India;  but  in  1876  a  discussion  on  the 
selection  and  training  of  candidates  for  the  Indian  Civil  Service 
was  laid  before  Parliament.  In  it  was  included  a  Minute  by 
Sir  Henry  Maine,  which  is  understood  to  have  had  con- 
siderable effect  on  the  minds  of  those  who  then  said  the  last 
word  in  Indian  affairs,  and  might  be  quoted  as  a  good 
example  of  his  later  official  style.  As,  however,  it  is  easily 
accessible,  I  prefer  to  quote  another  which  it  is  difficult,  not 
to  say  practicably  impossible,  to  procure,  and  which  will 
accordingly  be  found  in  its  place  lower  down. 


42  MEMOIR   OF   SIR   HENRY   ^NIAINE 

The  question  about  the  training  of  Civil  Servants,  settled 
for  a  time  in  1876,  has  been  reopened,  rediscussed,  and  once 
more  settled  in  a  different  manner  ;  but  this  is  not  the  place 
to  discuss  it. 

In  1875  Sir  Henry  Maine  brought  out  his  book  on  the 
'  Early  History  of  Institutions.'  It  comprised  thirteen  lectures, 
which  had,  like  all  those  contained  in  the  first  edition  of  his 
'  Village  Communities,'  been  delivered  at  Oxford.  A  large 
portion  of  them  is  occupied  with  the  new  materials  for  legal 
and  social  history  which  had  been  then  recently  published  in 
translations  of  ancient  Irish  or  Brehon  law  treatises,  while 
some  unpublished  translations  of  Brehon  manuscripts,  to 
which  the  lecturer  had  access,  were  also  freely  used.  The 
work  may  be  considered  as  a  sort  of  continuation  of  Ancient 
Law.'  It  is  probable  that  it  will  never  find  as  many  to  study 
it  as  does  that  book,  but  it  is  nevertheless  full  of  matter  which 
will  be  thought  valuable  by  some  who  would  not  be  specially 
attracted  by  the  curious  light  it  throws  upon  the  resemblances 
between  primitive  Aryan  institutions  as  studied  on  the  banks 
of  the  Ganges  and  on  those  of  the  Shannon. 

Anyone  who  reads  the  following  passage  from  Lecture  X. 
will  understand  the  nature  of  this  light.  Sir  Henry  is  speak- 
ing of  the  law  of  distress,  which  fills  a  very  large  part  of  the 
ancient  Irish  treatise  known  as  '  Senchas  Mor.' 

' "  Notice  precedes  every  distress  in  the  case  of  the  inferior 
grades,  except  it  be  by  persons  of  distinction  or  upon  persons 
of  distinction.  Fasting  precedes  distress  in  their  case.  He 
who  does  not  give  a  pledge  to  fasting  is  an  evader  of  all  ;  he 
who  disregards  all  things  shall  not  be  paid  by  God  or  man." 

'  Mr.  Whitley  Stokes  was  the  first,  I  believe,  to  point  out 
that  the  institution  here  referred  to  was  identical  with  a 
practice  diffused  over  the  whole  East,  and  called  by  the 
Hindus  "  sitting  dharna."  I  will  presently  read  you  a  passage 
in  which  the  proceeding  is  described  as  it  was  found  in  India 
before  the  British  Government,  which  has  always  regarded  it 


'EARLY   HISTORY   OF   INSTITUTIONS'  43 

as  an  abuse,  had  gone  far  in  its  efforts  to  suppress  it.  But 
perhaps  the  most  striking  examples  of  the  ancient  custom  arc 
to  be  found  at  this  day  in  Persia,  where  (I  am  told)  a  man, 
intending  to  enforce  payment  of  a  demand  by  fasting,  begins 
by  sowing  some  barley  at  his  debtor's  door  and  sitting  down 
in  the  middle.  The  symbolism  is  plain  enough.  The  creditor 
means  that  he  will  stay  where  he  is  without  food,  either  until 
he  is  paid  or  until  the  barley-seed  grows  up  and  gives  him 
bread  to  eat. 

'  Lord  Teignmouth  has  left  us  a  description  (in  Forbes's 
"  Oriental  Memoirs  ")  of  the  form  which  the  "  watching  con- 
stantly at  the  door  "  had  assumed  in  British  India  before  the 
end  of  the  last  century.  The  inviolability  of  the  Brahman  is 
a  fixed  principle  with  the  Hindus,  and  to  deprive  him  of  life, 
either  by  direct  violence  or  by  causing  his  death  in  any  mode, 
is  a  crime  which  admits  of  no  expiation.  To  this  principle 
may  be  traced  the  practice  called  dharna,  which  may  be 
translated  caption  or  arrest.  It  is  used  by  the  Brahmans  to 
gain  a  point  which  cannot  be  accomplished  by  any  other 
means,  and  the  process  is  as  follows  :  The  Brahman  who 
adopts  this  expedient  for  the  purpose  mentioned  proceeds  to 
the  door  or  house  of  the  person  against  whom  it  is  directed, 
or  wherever  he  may  most  conveniently  arrest  him  ;  he  then 
sits  down  in  dharna  with  poison  or  a  poniard  or  some  other 
instrument  of  suicide  in  his  hand,  and  threatening  to  use  it  if 
his  adversary  should  attempt  to  molest  or  pass  him  he  thus 
completely  arrests  him.  In  this  situation  the  Brahman  fasts, 
and  by  the  rigour  of  the  etiquette  the  unfortunate  object  of 
his  arrest  ought  to  fast  also,  and  thus  they  both  remain  till 
the  institutor  of  the  dharna  obtains  satisfaction.  In  this,  as 
he  seldom  makes  the  attempt  without  the  resolution  to  per- 
severe, he  rarely  fails  ;  for  if  the  party  thus  arrested  were  to 
suffer  the  Brahman  sitting  in  dharna  to  perish  by  hunger, 
the  sin  would  for  ever  lie  upon  his  head.  This  practice  has 
been  less  frequent  of  late  years,  since  the  institution  of  the 
Court  of  Justice  at  Benares  in  1793  ;  but  the  interference  of 
the  Court  and  even  of  the  Resident  has  occasionally  proved 
insufficient  to  check  it.' ' 

'  It  is  now  punishable  under  the  Indian  Penal  Code,  sec.  508. 


44  MEMOIR   OF   SIR   HENRY   MAINE 

But  although  the  Hght  thrown  mutually  by  early  Irish 
institutions  upon  Indian  institutions  and  vice  versa  is  the 
principal  subject  of  the  lectures,  all  sorts  of  sidelights  are 
made  to  shine  upon  many  subjects  more  generally  interesting 
to  English  readers.  I  find,  for  example,  very  early  in  the 
second  lecture  this  passage  referring  to  Ctesar's  account  of  the 
Druids. 

'  The  prefaces  in  Irish  found  at  the  commencement  of 
some  of  the  law  tracts,  which  are  of  much  interest  but  of  un- 
certain origin  and  date,  contain  several  references  to  the 
order  in  Celtic  society  which  has  hitherto  occupied  men's 
thoughts  more  than  any  other,  the  Druids.  The  word  occurs 
in  the  Irish  text.  The  writers  of  the  prefaces  seem  to  have 
conceived  the  Druids  as  a  class  of  heathen  priests  who  had 
once  practised  magical  arts.  The  enchanters  of  Pharaoh 
are,  for  instance,  called  the  Egyptian  Druids,  in  the  preface 
to  the  "  Senchas  Mor."  The  point  of  view  seems  to  be  the  one 
familiar  enough  to  us  in  modern  literature,  where  an  exclusive 
prominence  is  given  to  the  priestly  character  of  the  Druids  ; 
nor  do  the  Brehon  lawyers  appear  to  connect  themselves 
with  a  class  of  men  whom  they  regard  as  having  belonged 
altogether  to  the  old  order  of  the  world.  I  am  quite  aware 
that,  in  asking  whether  the  historical  disconnection  of  the 
Brehons  and  the  Druids  can  be  accepted  as  a  fact,  I  suggest 
an  inquiry  about  which  there  hangs  a  certain  air  of  absurdity. 
There  has  been  so  much  wild  speculation  and  assertion  about 
Druids  and  Druidical  antiquities  that  the  whole  subject  seems 
to  be  considered  as  almost  beyond  the  pale  of  serious  dis- 
cussion. Yet  we  are  not  at  liberty  to  forget  that  the  first 
great  observer  of  Celtic  manners  describes  the  Celts  of  the 
continent  as  before  all  things  remarkable  for  the  literary  class 
which  their  society  included.  Let  me  add  that  in  Caesar's 
account  of  the  Druids  there  is  not  a  word  which  does  not 
appear  to  me  perfectly  credible.  The  same  remark  may  be 
made  of  Strabo.  But  the  source  of  at  all  events  a  part  of 
the  absurdities  which  have  clustered  round  the  subject  I 
take  to  be  the  Natural  History  of  Pliny,  and  they  seem  to 
belong  to  those  stories  about   plants  and  animals  to  which 


'EARLY   HISTORY   OF    INSTITUTIONS*  45 

may  be  traced   a  great  deal  of  the  nonsense  written  in  the 
world. 

'  You  may  remember  the  picture  given  by  Csesar  of  the  con- 
tinental Celts,  as  they  appeared  to  him  when  he  first  used  his 
unrivalled  opportunities  of  examining  them.      He  tells  us  that 
their  tribal   societies   consisted  substantially  of  three  orders, 
two  privileged  and  one  unprivileged,  and  these  orders  he  calls 
the  Equites,  the  Druids,  and   the   Plebeians.     Somebody  has 
said  that  this  would  be  a  not  very  inaccurate  description  of 
French  society  just  before  the  first  revolution,  with  its  three 
orders    of  nobles,    clergy   and    unprivileged   tier's   ctat ;    but 
the  observation    is   a    good    deal  more  ingenious  than  true. 
We  are  now  able  to  compare  Caesar's  account  of  the  Gauls 
with  the   evidence  concerning  a  Celtic  community  which  the 
Brehon  tracts  supply  ;  and  if  we  use  this  evidence  as  a  test, 
we  shall   soon  make  up  our  minds  that,  though  his  represen- 
tation   is    accurate  as   far  as  it  goes,  it  errs  in  omission  of 
detail.     The  equites,  or  chiefs,  though  to  some  extent  they 
were  a  class  apart,  did  not  stand  in  such  close  relation  to  one 
another  as  they  stood  to  the  various  septs  or  groups  over 
which   they  presided.     "  Every  chief,"  says  the  Brehon   law, 
"  rules  over  his  land,  whether  it  be   small  or  whether  it  be 
large."     The  Plebeians,  again,  so  far  from  constituting  a  great 
miscellaneous  multitude,  were   distributed  into  every  sort  of 
natural  group,  based  ultimately  upon  the  family.     The  mis- 
take, so  far  as  there  was  error,  I  conceive  to  have   been  an 
effect  of  mental  distance.     It  had  the  imperfections  of  the  view 
obtained  by  looking  on  the  Gangetic  plains  from  the  slopes  of 
the  Himalayas.     The  impression  made  is  not  incorrect,  but  an 
immensity  of  detail  is  lost  to  the  observer,  and  a  surface  varied 
by  countless   small  elevations  looks   perfectly  flat.     Caesar's 
failure  to  note  the  natural  divisions  of  the  Celtic  tribesmen, 
the  families,  and  septs  or  sub-tribes  is  to  me  particularly  in- 
structive.    The  theory  of  human  equality  is  of  Roman  origin  ; 
the  comminution  of  human  society,  and  the  unchecked  com- 
petition among  its  members,  which  have  gone  so  far  in  the 
Western  Europe  of  our  days,  had  their  most  efficient  causes 
in    the    mechanism    of  the    Roman    State.      Hence    Caisar's 
omissions  seem  to  be  those  most  natural  in  a  Roman  general 


4.6  MEMOIR   OF   SIR    HENRY   MAINE 

who  was  also  a  great  administrator  and  trained  lawyer;  and 
they  are  undoubtedly  those  to  which  an  English  ruler  of 
India  is  most  liable  at  this  moment.  It  is  often  said  that  it 
takes  two  or  three  years  before  a  Governor-General  learns  that 
the  vast  Indian  population  is  an  aggregate  of  natural  groups, 
and  not  the  mixed  multitude  he  left  at  home  ;  and  some 
rulers  of  India  have  been  accused  of  never  having  mastered 
the  lesson  at  all.' 

Again,  in  the  same  lecture,  we  have  the  following  : — 

'  Nowhere  else  in  the  world  [the  writer  is  speaking  of 
England]  is  there  the  same  respect  for  a  fact,  unless  the 
respect  be  of  English  origin.  The  feeling  is  not  shared  by 
our  European  contemporaries,  and  was  not  shared  by  our 
remote  ancestors.  It  has  been  said— and  the  remark  seems 
to  me  a  very  just  one — that  in  early  times  questions  of  fact 
are  regarded  as  the  simplest  of  all  questions.  Such  tests  of 
truth  as  ordeal  and  compurgation  satisfy  men's  minds  com- 
pletely and  easily,  and  the  only  difficulty  recognised  is  the 
discovery  of  the  legal  tradition  and  its  application  to  the 
results  of  the  test.  Up  to  a  certain  point,  no  doubt,  our  own 
mechanism  for  the  determination  of  a  fact  is  also  a  mere 
artifice.  We  take  as  our  criterion  of  truth  the  unanimous 
opinion  of  twelve  men,  on  statements  made  before  them. 
But  then  the  mode  of  convincing,  or  attempting  to  convince 
them  is  exactly  that  which  would  have  to  be  followed  if  it 
were  sought  to  obtain  a  decision  upon  evidence  from  the 
very  highest  human  intelligence.  The  old  procedure  was 
sometimes  wholly  senseless,  sometimes  only  distantly  rational ; 
the  modern  English  procedure  is  at  most  imperfect,  and 
some  of  its  imperfection  arises  from  the  very  constitution  of 
human  nature  and  human  society.  I  quite  concur,  therefore, 
in  the  ordinary  professional  opinion  that  its  view  of  facts  and 
its  modes  of  ascertaining  them  are  the  great  glory  of  English 
law.  I  am  afraid,  however,  that  facts  must  always  be  the 
despair  of  the  law-reformer.  Bentham  seems  to  me  from 
several  expressions  to  have  supposed  that  if  the  English  law 
of  evidence  were  reconstructed  on  his  principles,  questions 
of  fact  would  cease  to  present  any  serious  difficulty.     Almost 


'  EARLY   HISTORY   OF    INSTITUTIONS  '  47 

every  one  of  his  suggestions  has  been  adopted  by  the  legisla- 
ture, and  yet  inquiries  into  facts  become  more  protracted  and 
complex  than  ever.  The  truth  is  that  the  facts  of  human 
nature,  with  which  courts  of  justice  have  chiefly  to  deal,  are 
far  obscurer  and  more  intricately  involved  than  the  facts  of 
physical  nature  ;  and  the  difficulty  of  ascertaining  them  with 
precision  constantly  increases  in  our  age,  through  the  ever- 
growing miscellaneousness  of  all  modern  communities,  and 
through  the  ever-quickening  play  of  modern  social  move- 
ments. Possibly  we  may  see  English  law  take  the  form 
which  Bentham  hoped  for  and  laboured  for  ;  every  successive 
year  brings  us  in  some  slight  degree  nearer  to  this  achieve- 
ment ;  and  consequently,  little  as  we  may  agree  in  his  opinion 
that  all  questions  of  laiv  are  the  effect  of  some  judicial  delu- 
sion or  legal  abuse,  we  may  reasonably  expect  them  to  be- 
come less  frequent  and  easier  of  solution.  But  neither  facts 
nor  the  modes  of  ascertaining  them  tend  in  the  least  to  sim- 
plify themselves,  and  in  no  conceivable  state  of  society  will 
courts  of  justice  enjoy  perpetual  vacation.' 

Such  passages,  of  interest  to  all  educated  men,  might  be 
cited  from  every  one  of  the  lectures. 

The  sixth,  on  '  The  Chief  and  the  Land,'  is  perhaps  the 
one  in  the  whole  volume  which  is  likely  to  have  the  largest 
number  of  readers  outside  the  rank  of  professed  students  of 
jurisprudence,  while  the  last  four  lectures  will  be  mainly 
valuable  to  the  latter  class.  There  is  not  one,  however,  from 
the  perusal  of  which  any  intelligent  man  will  rise  without 
having  learned  something  he  will  wish  to  remember,  or  without 
obtaining  new  material  for  thought. 

In  the  year  1876,  a  third  edition  of 'Village  Communities' 
was  called  for,  and  to  this  the  publisher  added  a  number  of 
detached  essays.  One  of  these  was  the  paper  on  '  Roman  Law 
and  Legal  Education  '  already  alluded  to  ;  another  was  the 
Rede  lecture  '  On  the  Effects  of  Observation  of  India  on 
Modern  European  Thought,'  which  was  delivered  in  the  year 
1875.  It  is  in  this  that  occurs  the  saying  which  I  have 
already  alluded  to  as  having  been  so  often  quoted  : — 


48  MEMOIR   OF   SIR   HENRY   MAINE 

'  Except  the  blind  forces  of  Nature,  nothing  moves  in  this 
world  which  is  not  Greek  in  its  origin.' 

In  the  same  volume  are  printed  three  addresses  to  the 
University  of  Calcutta,  already  mentioned  as  being  among 
the  very  best  of  Sir  Henry's  compositions  ;  a  review  of  his 
friend  and  successor  Sir  James  Stephen's  '  Introduction  to  the 
Indian  Evidence  Act,'  and  several  papers  of  minor  importance. 

In  1877  a  great  change  took  place  in  the  life  of  the  subject 
of  this  sketch.  The  Master  of  Trinity  Hall  died,  and  Sir  Henry 
was  chosen  to  be  his  successor.  This  gave  him  a  dignified 
position  and  a  pleasant  occasional  home  at  Cambridge,  with- 
out burdening  him  with  duties  sufficiently  serious  to  interfere 
with  his  work  as  a  Member  of  the  Council  of  India,  work 
which,  I  may  say  in  passing,  is  very  far  indeed  from  being  so 
light  as  I  have  often  found  people  interested  in  India,  but 
unacquainted  with  the  huge  machine  which  connects  our 
benevolent  despotism  in  Asia  with  our  parliamentary  system 
at  home,  often  imagine  it  to  be. 

His  renewed  connection  with  Cambridge  made  it  natural 
for  him  to  resign  his  Oxford  Professorship.  This  he  did  in 
1878,  finding  a  thoroughly  worthy  successor  in  Sir  Frederick 
Pollock,  who  a  decade  later  paid,  with  full  knowledge,  a  most 
graceful  tribute  to  the  work  of  his  illustrious  predecessor. 

'Maine,'  he  said, 'can  no  more  become  obsolete  through  the 
industry  and  ingenuity  of  modern  scholars  than  Montesquieu 
could  be  made  obsolete  by  the  legislation  of  Napoleon.  Facts 
will  be  corrected,  the  order  and  proportion  of  ideas  will  vary, 
new  difficulties  will  call  for  new  ways  of  solution,  useful 
knowledge  will  serve  its  turn  and  be  forgotten  ;  but  in  all  true 
genius,  perhaps,  there  is  a  touch  of  Art ;  Maine's  genius  was 
not  only  touched  vrith  Art,  but  eminently  artistic ;  and  Art  is 
immortal.' 

Honours  now  fell  thickly  upon  the  subject  of  this  sketch. 
In  1877,  he  was  elected  a  member  of  '  The  Club.'  On  the  last 
day  of  December,  1881,  he  became  corresponding  member  of 


HONOURS 


49 


the  Institut  in  the  Academic  des  Sciences  Morales  et  Politiques, 
and  in  April  1883  was  made  foreign  member  of  the  same  in 
the  room  of  Emerson.  I  think  the  American  Academy  was 
the  first  learned  body  abroad  which  recognised  the  merit  of 
the  great  English  jurist.  It  made  him  a  member  while  he 
was  still  in  India,  in  November  1866.  The  Dutch  Institute 
followed  suit  about  ten  years  later.  Then  in  1877  came 
the  Accademia  dei  Lincei,  and  in  1878  the  Madrid  Academy. 
The  Royal  Irish  Academy  followed  in  1882,  the  Washington 
Anthropological  Society  in  1883,  and  the  Juridical  Society  of 
Moscow  in  1884. 

All  these  distinctions,  as  well  as  the  membership  of  the 
Royal  Society,  he  gratefully  accepted  ;  while  he  wisely  de- 
clined, at  various  periods  of  his  career,  the  Chief  Justiceship 
of  Bengal,  the  permanent  Under-Secretaryship  for  the  Home 
Department,  the  permanent  Under-Secretaryship  for  Foreign 
Affairs,  and  the  Principal  Clerkship  in  the  House  of  Com- 
mons, vacated  by  the  transformation  of  Sir  T.  Erskine  May 
into  Lord  Farnborough.  For  all  these  positions  his  health 
absolutely  unfitted  him,  while  the  third,  besides  entailing 
almost  immediate  death,  would  have  brought  him  amidst  a 
kind  of  work  of  which  he  knew  nothing  whatever,  into  the 
sharpest  contrast  with  the  greatest  master  of  Parliamentary 
practice  who  has  ever  lived. 

In  the  year  1879  the  Indian  Government  asked  Maine's 
opinion  about  the  progress  of  codification  in  India,  and  he 
replied  by  the  following  Minute  : — 

'  I  am  highly  sensible  of  the  honour  which  the  Govern- 
ment of  India  confers  on  me  in  asking  my  opinion  on  various 
questions  relating  to  the  progress  of  Indian  codification,  but 
I  have  felt  from  the  first  that  my  connection  with  the  Home 
Government  would  much  diminish  my  power  of  giving  as- 
sistance to  the  Law  Commissioners  lately  appointed.  I  have 
concurred  in  the  several  despatches  which  have  been  ad- 
dressed by  the  Secretary  of  State  to  the  Governor-General  in 


50 


MEMOIR   OF   SIR   HENRY   MAINE 


Council  on  the  subject  of  codification,  and  these  despatches 
apply  to  almost  all  the  points  on  which  I  am  now  requested 
to  state  my  views.  I  cannot  again  conveniently  follow  Mr. 
Justice  Stephen  in  his  criticism  on  the  details  of  the  Bills  of 
which  copies  have  reached  this  country,  since  these  measures, 
when  they  leave  the  hands  of  the  able  and  experienced  men 
who  constitute  the  Law  Commission,'  will  probably  be  trans- 
mitted to  the  Secretary  of  State  for  an  official  opinion,  and  I 
am  disinclined  to  form  my  own  judgment  on  their  contents 
before  the  last  words  of  the  Commissioners  are  known  to  us. 

'  The  Secretary  of  State,  in  his  despatch  of  August  9,  1877, 
stated  in  general  language  his  acquiescence  in  the  course  of 
procedure  which  the  Government  of  India  proposed  to  follow 
in  regard  to  codification.  For  myself,  I  felt  too  much  interest 
in  the  continuance  of  the  process  to  have  any  wish  for  inter- 
rupting it  by  objections  to  order  and  arrangement,  and  I  was 
conscious  that  the  transfer  to  India  of  the  initiative  in  codi- 
fying Bills  made  it  necessary  to  give  wide  scope  to  the  ideas 
of  the  Law  Member  of  Council  for  the  time  being.  But  there 
is  not  much  impropriety  in  my  acknowledging  that  I  have 
never  been  convinced  by  the  arguments  of  the  Government 
of  India  for  postponing  the  law  of  tort  (or  civil  wrong),  which 
were  first  given  in  the  despatch  of  July  5,  1875,  and  were  not 
recalled  by  that  of  May  10,  1877.  The  absence  of  a  measure 
on  the  subject  is  the  great  gap  in  the  body  of  Indian  codified 
law,  and  one  hardly  understands  the  spirit  in  which  a  system 
of  the  kind  could  be  framed,  with  a  law  of  contract  enacted 
but  a  law  of  tort  omitted,  and,  to  all  appearance,  indefinitely 
postponed.  I  am  not  in  any  way  satisfied  by  the  reasoning 
of  paragraph  eight  of  the  despatch  first  above  quoted,  which 
indeed  appears  to  contradict  much  of  that  advanced  in  the 
remaining  paragraphs  of  this  document.  It  contends  that 
rights  have  not  become  sufficiently  settled  in  India  to  afford 
a  basis  for  a  codified  law  of  wrongs.  But  the  frank  statement 
of  the  difficulties  of  codification  which  fills  much  of  the  de- 
spatch, and  which  almost  amounts  to  a  general  argument 
against  codification  itself,  seems  to  be  founded  on  the  as- 
sumption that  India  is  full  of  indigenous  legal  or  customary 
'  Mr.  Whitley  Stokes,  Sir  Charles  Tamer,  and  Mr.  (now  Sir  Raymond)  West. 


MINUTE   ON    CODIFICATfON  5 1 

rules  which  suffice  for  the  solution  of  all  questions,  and  that 
the  great  danger  of  codification  is,  that  through  the  necessary 
conditions  of  the  process  these  rules  may  be  changed.  I 
believe  the  former  view  to  be  much  truer  than  the  latter. 
Nobody  who  has  inquired  into  the  matter  can  doubt  that, 
before  the  British  Government  began  to  legislate,  India  was, 
regard  being  had  to  its  moral  and  material  needs,  a  country 
singularly  empty  of  law.  I  think  it  therefore  very  possible, 
and  even  certain,  that  there  are  not  in  India  indigenous  rules 
to  guide  the  courts  of  justice  when  questions  of  civil  wrong 
are  brought  before  them.  But  what  is  the  consequence  ? 
Civil  wrongs  are  suffered  every  day  in  India,  and  though 
men's  ideas  on  the  quantity  of  injury  they  have  received  may 
be  vague,  they  are  quite  sufficiently  conscious  of  beino- 
wronged  somehow  to  invite  the  jurisdiction  of  courts  of 
justice.  The  result  is  that,  if  the  legislature  does  not  legis- 
late, the  courts  of  justice  will  have  to  legislate ;  for,  indeed, 
legislation  is  a  process  which  perpetually  goes  on  through 
some  organ  or  another  wherever  there  is  a  civilised  Govern- 
ment, and  which  cannot  be  stopped.  But  legislation  by 
Indian  judges  has  all  the  drawbacks  of  judicial  legislation 
elsewhere,  and  a  great  many  more.  As  in  other  countries,  it 
is  legislation  by  a  legislature  which,  from  the  nature  of  the 
case,  is  debarred  from  steadily  keeping  in  view  the  standard 
of  general  expediency.  As  in  other  countries,  it  is  haphazard, 
inordinately  dilatory,  and  inordinately  expensive,  the  cost  of 
it  falling  almost  exclusively  on  the  litigants.  But  in  India 
judicial  legislation  is,  besides,  in  the  long  run,  legislation  by 
foreigners,  who  are  under  the  thraldom  of  precedents  and 
analogies  belonging  to  a  foreign  law,  developed  thousands 
of  miles  away,  under  a  different  climate  and  for  a  different 
civilisation.  I  look  with  dismay,  therefore,  on  the  indefinite 
postponement  of  a  codified  law  of  tort  for  India. 

'  The  only  other  point  on  which  I  think  I  can  offer  an 
opinion  with  propriety  at  the  present  moment  is  the  general 
character  of  the  Transfer  of  Property  Bill.  I  am  well  aware 
that  the  precedence  given  to  this  measure  is  in  part  attribu- 
table to  the  circumstance  that  a  draft  law  on  the  subject  was 
sent  to  India  by  the  Indian  Law  Commissioners,  and,  indeed, 


52  MEMOIR   OF   SIR   HENRY   MAINE 

I  long  ago  considered  myself  that  some  measure  of  the  kind 
was  greatly  needed  for  Bengal  Proper.  I  will  add  that  the 
present  Bill  seems  to  me  an  extremely  well  executed  simpli- 
fication of  the  corresponding  branches  of  English  law.  But 
the  question  is,  whether  it  is  desirable  in  the  Indian  measure 
to  follow  the  general  lines  of  this  English  law.  The  system 
of  the  Bill  is  a  system  of  private  transfer  applied  to  immov- 
able property.  But  the  system  of  the  whole  civilised  world, 
except  England  and  the  countries  under  the  influence  of 
English  jurisprudence,  is  now  a  system  of  public  transfer. 
Entries  in  a  public  register  have  taken  the  place  of  convey- 
ances, passed  from  hand  to  hand  and  then  locked  up  in  a 
strong  box  or  muniment  room.  Almost  every  end  which  the 
reformer  of  the  law  has  in  view — security  of  title,  cheapness 
of  transfer,  clear  general  understanding  of  rights — has  been 
obtained  by  these  expedients,  which  I  regard  as  the  greatest 
legal  discovery  of  the  century.  Now,  everybody  must  desire 
that  law  introduced  into  India  should  be  the  best  law  of  its 
kind  ;  but  there  are  other  reasons  besides  this  why  the  Con- 
tinental, rather  than  the  English,  mechanism  of  transfer  should 
be  followed  by  the  Indian  legislator.  The  most  ancient  con- 
veyances known  to  us  of  land  and  of  the  higher  kinds  of 
property  were  public  conveyances.  They  seem  to  have  very 
gradually  become  private  conveyances  ;  and  the  change  began 
a  series  of  complications  and  confusions  in  law  which  encum- 
bered all  codes  and  bodies  of  rules  down  to  the  latest  stage 
of  legal  history.  There  were,  however,  some  kinds  of  immov- 
able property  which  could  be  alienated  by  methods  of  transfer, 
retaining  the  publicity,  and  therefore  the  convenience  and 
simplicity,  of  the  primitive  conveyance.  Such,  also,  were  the 
copyhold  lands  of  our  own  country,  in  which  the  advantage 
of  transfer  by  entry  in  a  court  roll  is  considered  by  some  to 
outweigh  the  disadvantages  of  an  otherwise  perverse  tenure. 
Such  also  were  the  lands  held  by  peasant  tenures  on  the 
European  continent  ;  the  present  land  registers  of  the  Con- 
tinent may  undoubtedly  be  traced  to  the  manor  rolls  in  which 
transfers  of  these  lands  were  recorded.  It  is  notorious,  how- 
ever, that  in  India  the  remnants  of  the  primitive  methods  of 
public  transfer  survive  in  unusual  abundance,  and  they  are,  in 


MINUTE  ON    CODIFICATION  53 

fact,  the  basis  of  our  revenue  system.  Under  such  circum- 
stances, I  cannot  but  consider  that  it  \\'ould  be  a  retrograde 
step  to  give  in  India  any  further  extension  to  the  now  purely 
Enghsh  system  of  private  transfer,  or  to  estabhsh  it  as  the 
normal  system  of  the  country.  I  am  at  the  same  time  aware 
that,  owing  to  the  decay  of  the  village  organisation  in  Lower 
Bengal,  and  to  the  peculiarities  of  the  revenue  settlement,  the 
above  remarks  are  less  true  of  that  province  than  of  other 
parts  of  the  country,  and  I  may  observe  that,  when  I  origi- 
nally suggested  to  the  Indian  Law  Commissioners  that  the 
draft  of  a  measure  for  the  transfer  of  immovable  property 
should  be  prepared,  I  recommended  that  its  operation  should 
be  confined  to  Lower  Bengal. 

'  I  imagine  that,  when  Mr.  Justice  Stephen  speaks  of  the 
Land  Revenue  Acts  and  Registration  Acts  as  the  natural 
foundation  of  an  Indian  system  of  real  property  law,  he 
intends  to  convey  an  opinion  not  widely  different  from  mine. 
The  subject,  however,  is  one  which  has  much  engaged  my 
attention  of  late  ;  and  I  venture  to  present  in  an  Appendix 
to  this  paper  some  unpublished  observations  of  my  own  on 
the  influence  exerted  upon  law  by  the  Continental  S}'stems  of 
land  registration.  The  purpose  for  which  they  were  at  first 
used  made  it  convenient  that  the  illustrations  should  be  taken 
from  Roman  law,  but  the  assertions  made  would  prove,  I 
think,  to  be  equally  true  of  the  corresponding  branches  of 
our  own  legal  system.  It  is  scarcely  necessary  that  I  should 
recommend  to  the  close  attention  of  the  Commissioners  the 
remarks  of  Mr.  Justice  Stephen  on  the  far-reaching  ambiguity 
of  the  word  "  trust  "  as  understood  by  English  lawyers,  and  on 
the  high  artificiality  of  the  conception  which  it  is  meant  to 
express. 

'  While  I  concur  with  Mr.  Justice  Stephen  in  considering 
that  a  provisional  convenience  is  the  utmost  that  can  be 
claimed  for  the  so-called  methods  of"  scientific  "  arrangement 
followed  or  proposed  to  be  followed  by  the  authors  of  codes, 
I  should  be  sorry  to  deny  absolutely  that  when  a  reasonably 
extensive  body  of  substantive  civil  law  has  been  enacted  for 
India,  it  may  conceivably  be  arranged  in  a  more  compact  and 
more  convenient  form  than  that  of  a  series  of  fragmentary 


54  MEMOIR   OF   SIR   HENRY   MAINE 

portions  successively  passed  by  the  legislature.  But  the  ques- 
tion is  not  of  pressing  importance.  The  opinion  of  the  Govern- 
ment of  India,  as  stated  in  its  despatch  of  June  24,  1878,  was 
that  (paragraph  10)  a  code  of  civil  law  might  be  produced,  circu- 
lated to  the  Local  Governments,  revised,  and  arranged  within 
a  period  of  fiv^e  years  ;  but  the  present  Secretary  of  State,  in 
paragraph  6  of  his  despatch  of  September  5,  1878,  has  ex- 
pressed his  strong  objection  to  "  any  scheme  for  compressing 
the  completion  of  the  Civil  Code  within  a  period  of  five  years, 
or  any  other  definite  time."  And  many  other  circumstances 
help  to  show  that  the  expectations  of  the  Government  of 
India  on  the  point  were  much  too  sanguine. 

'  I  desire  to  terminate  this  brief  paper  with  an  assurance 
that  my  services  are  at  all  times  at  the  disposal  of  the  Govern- 
ment of  India,  and  that  the  reasons  given  in  my  first  para- 
graph are  exclusively  those  which  have  made  me  hesitate  to 
follow  Mr.  Justice  Stephen  in  criticism  on  the  detail  of  the 
"  six  codifying  bills."  I  am  bound  to  add  that,  subject  to  the 
general  observations  made  above,  and  subject  to  some  doubts 
as  to  portions  of  the  detail  which  I  share  with  Sir  James 
Stephen,  the  six  Bills  '  seem  to  me  to  deserve  admiration, 
more  especially  for  the  skill  and  labour  manifest  in  their 
workmanship.' 

The  following  paragraphs  constitute  the  Appendix  above  alluded 
to.  Those  who  have  learned  by  experience  how  much  less  trouble- 
some a  process  it  is  to  buy  land  in  France  than  to  buy  it  in  England 
will  be  much  inclined  to  adopt  their  teaching. 

'  The  suggestion  has  often  been  made  that  real  property 
should  be  closely  assimilated  to  personalty,  more  especially 
in  respect  of  conveyance.  There  ought  to  be  no  more  diffi- 
culty, it  is  said,  in  transferring  a  piece  of  land  than  in  selling 
a  horse.     I  believe  the  analogy  to  be  unsound,  and  the  route 

'  These  Bills  were  the  Transfer  of  become    law.      In    finally  revising  the 

Property   Bill   (now  Act  IV.  of  1882),  Transfer  of  Property  Bill,  Maine's  criti- 

the    Easements    Bill   (now   Act  V.    of  cism  was  borne  in  mind,  and  throughout 

1882),  the  Trusts  Bill  (now  Act  II.   of  the  greater  part  of  British  India  public 

1882),  the  Negotiable  Instruments  Bill  registration  is  now  an  essential  element 

(now  Act  XXVI.  of  1881),  and  lastly,  of  all  important  transactions  relating  to 

the  Alluvion  Bill  and  the  Master  and  land. 
Servant  Bill,   neither  of  which  has  yet 


TRANSFER   OF   LAND  55 

indicated  a  false  one.  There  is  far  more  promise  in  reversing 
than  in  extending  the  principle,  in  treating  land  as  essentially 
unlike  movables,  and  in  a  return  to  the  ancient  methods  of 
conveying  allodial  land.  The  subject  is,  for  several  reasons, 
worthy  of  our  attention. 

'  It  is  to  be  recollected,  first,  that  the  primitive  conveyances 
of  allodial  land  were,  before  all  things,  public.  Land  belonged 
to  the  tribe,  joint  family,  or  village  community  before  it 
belonged  to  the  individual  household  ;  even  when  it  became 
private  property  the  brotherhood  retained  large  rights  over  it, 
and  without  the  consent  of  the  collective  brotherhood  it  could 
not  be  transferred.  The  public  consent  of  the  village  to  a 
sale  of  land  is  still  required  over  much  of  the  Aryan  world. 
Although,  as  we  know  the  "  Mancipation  "  in  Roman  legal 
history,  it  is  a  form  of  private  transfer,  it  plainly  bears  the 
stamp  of  its  original  publicity.  The  five  witnesses  who  had 
to  assist  at  a  "  mancipation  "  represent  the  old  consenting 
community,  according  to  a  principle  of  representation  by  fives 
widely  diffused  among  primitive  races.  As  a  private  convey- 
ance "  mancipation "  was  extremely  clumsy,  and  I  have  no 
doubt  it  was  a  great  advantage  to  Roman  society  when  this 
ancient  conveyance  was  first  subordinated  to  "  tradition  "  or 
simple  delivery,  and  finally  superseded  by  it.  Nevertheless, 
the  most  successful  modern  experiments  have  reverted  in 
principle  to  a  method  of  transfer  even  older  than  "  mancipa- 
tion," and  the  latest  simplifications  of  the  conveyance  of  land 
are  a  reproduction  of  the  primitive  public  transfers  in  the  face 
of  the  community  in  a  new  form  appropriate  to  large  and 
miscellaneous  societies. 

'  In  France  and  in  the  territories  incorporated  with  the 
empire  of  Napoleon  I.  there  has  existed,  ever  since  the  esta- 
blishment or  introduction  of  the  Code  called  by  his  name,  a 
system  of  publicly  registering  sales  and  mortgages  of  land. 
In  some  of  the  Germanic  countries  there  was  long  a  disin- 
clination to  adopt  these  expedients,  but  they  have  now  been 
almost  universally  copied  on  the  Continent,  and,  as  sometimes 
happens,  the  new  system  is  most  perfect  where  the  delay  in 
accepting  it  was  longest.  The  land  registries  which  receive 
the  highest  commendation  from  juridical  writers  are  those  of 


56  MEMOIR   OF   SIR    HENRY   MAINE 

certain  small  Teutonic  communities — for  instance,  the  State 
of  Hesse-Darmstadt  and  the  Canton  of  Zurich.  I  can  here 
give  but  a  brief  description  of  the  mechanism.  The  land  of 
the  community  is  divided  into  a  number  of  circumscriptions 
of  no  great  area.  For  each  of  these  a  central  office  is  esta- 
blished, with  a  staff  of  functionaries — who  are,  to  some  extent, 
experts— and  at  each  office  a  register  is  opened  in  which 
separate  portions  or  groups  of  pages  are  appropriated  to 
separate  masses  of  land.  There  has  been  some  controversy 
as  to  what  the  area  selected  for  separate  treatment  should  be 
— whether  a  space  determined  by  land  measurement,  or,  as 
we  should  say,  an  estate,  an  aggregate  of  lands  once  held  as 
a  single  property  ;  but  I  believe  that  the  historical  system, 
that  which  deals  with  estates  rather  than  with  areas  settled 
by  land  surveyors,  has  been  found  practically  the  most  con- 
venient. When  the  register  has  once  been  opened,  the  legal 
history  of  every  parcel  of  every  area  is  thenceforward  recorded 
in  it,  and  every  transfer  or  mortgage  must  be  registered  in  it 
under  pain  of  invalidity.  Whether  a  person  wishing  to  sell 
or  mortgage  has  the  right  to  do  so,  it  is  the  business  of  the 
staff  of  experts  to  ascertain.  It  is  absolutely  essential  to  the 
system  that  the  register  should  be  easily  accessible,  and  the 
formalities  of  registration  simple  and  cheap. 

'  The  nearest  English  analogy  to  this  new  foreign  system 
is  to  be  sought  in  the  court  rolls  of  manors,  and  it  is  some- 
times asserted  by  lawyers  that  the  manifold  disadvantages  of 
copyhold  property  are  compensated  by  the  many  conveniences 
arising  from  its  registration  in  these  rolls.  As  to  the  great 
mass  of  English  freehold  property,  there  is  a  general  admission 
among  lawyers  of  the  expediency  of  registration,  but  vehement 
dispute  as  to  the  best  method,  and  a  certain  disposition  to 
look  upon  the  practical  difficulties  as  insuperable.  It  is  true 
that  these  difficulties  are  far  greater  than  abroad.  Our  land 
law  is  much  more  complex  than  the  land  law  of  Continental 
countries,  where  it  has  its  counterpart,  if  it  has  any,  in  the 
exceptional  law  applied  to  the  estates  of  a  limited  number  of 
noble  families  ;  and  English  real  property  law  has  been  still 
further  complicated  by  the  liberty  of  transfer  and  devise 
which  we  have  enjoyed  from  a  comparatively  early  period. 


TRANSFER   OF    LAND  5/ 

The  great  difficulty  with  us  Hcs  in  the  prehminary  process  of 
ascertaining  whether  a  person  desirous  of  selHng  or  mort- 
gaging has  the  right  to  do  so  ;  but  this,  in  most  Continental 
countries,  is  a  comparatively  easy  matter,  the  bulk  of  the 
land  having  been  held,  until  the  early  part  of  this  century, 
by  a  tenure  of  strict  villeinage,  or,  as  we  should  say,  in 
copyhold. 

'  My  immediate  object,  however,  is  not  to  pass  a  eulogy 
on  the  principle  of  conveyance  by  entries  in  a  register,  or  to 
weigh  one  system  of  registration  against  another.  I  wish 
rather  to  point  out  some  remarkable  consequences  of  regis- 
tration which  ought  to  have  our  attention  in  our  special 
branch  of  study.  A  short  time  since  I  stated  that  the 
problems  once  solved  by  the  expedient  of  "  warranty  "  were 
common  to  all  bodies  of  jurisprudence.  What  is  to  be  done 
in  the  case  of  the  man  who  is  in  fact  exercising  all  the  powers 
of  an  owner,  but  who  has  no  title  to  show?  Is  he  to  be  at 
the  mercy  of  anybody  who  chooses  to  injure  or  disturb  him  .'' 
The  Roman  law  answers  this  question  by  providing  the  vast 
body  of  rules  which  constitute  the  chapter  on  possession. 
What  has  to  be  done  with  the  man  who  has  bought  with  the 
proper  formalities  but  not  from  the  true  owner,  or  from  the 
true  owner  but  not  with  the  proper  formalities  ?  The  answer 
of  the  Roman  law  consists  in  the  doctrines  of  "  bona-fide 
possession "  and  of  ownership  "  in  bonis,"  "  bonitarian "  or 
equitable  ownership.  Is  the  bonitarian  owner  or  the  possessor, 
with  or  without  good  faith,  always  to  have  an  imperfect  title  ? 
The  reply  is  in  the  great  departments  of  law  concerned  with 
usucapion  and  prescription.  If  a  man  mortgages  his  property 
to  a  number  of  creditors,  in  what  order  are  they  to  be  satisfied  ? 
The  volume  of  rules  by  which  all  systems  try  to  solve  this 
problem  is  quite  enormous.  But  it  is  very  remarkable  that, 
where  there  is  a  perfect  system  of  land  registry,  the  strong 
tendency  is  to  revert  to  the  doctrines  of  Roman  law  as  it 
must  have  been  before  possession,  usucapion,  and  bonitarian 
ownership  grew  up.  The  registry  of  the  sale  or  mortgage  of 
land  being  extremely  easy,  expeditious,  and  cheap,  there  is  a 
marked  disposition  among  the  authors  and  expositors  of  law 
to  say  to  the  members  of  the  community, "  Either  register  your 


58  MEMOIR   OF   SIR    HENRY   MAINE 

transfers  or  mortgages,  or  cause  them  to  be  registered,  or  you 
shall  have  no  rights  whatever.  If  you  neglect  doing  that 
which  is  in  your  power  to  do  at  any  moment,  and  at  a  trifling 
cost  in  time  and  money,  you  shall  not  have  the  benefit  of 
possession,  of  bonitarian  ownership,  or  usucapion,  or  pre- 
scription. At  most  there  shall  be  an  action  of  contract  to 
compel  the  seller  of  land  to  register  and  the  buyer  to  pay  the 
purchase-money.  As  regards  mortgages,  they  shall  rank  in 
the  order  of  priority  of  registration,  and  if  you  delay  going 
through  the  proper  formalities  or  compelling  them  to  be  gone 
through,  you,  the  mortgagee,  will  be  postponed  to  creditors 
more  diligent  than  yourself,  and  you  will  be  satisfied  after 
them." 

'  I  follow  German  writers  of  authority  in  saying  that  this 
is  the  condition  to  which  legal  doctrine  is  approximating  in 
much  of  Germany,  though  it  is  not  quite  adjusted  to  it.  The 
singular  result  is  that  some  of  the  most  intricate  and  difficult 
chapters  of  law  cease  to  be  of  any  or  much  importance.  The 
expedient  of  public  registration  is,  it  will  be  seen,  purely  me- 
chanical ;  a  contrivance,  very  like  it  in  principle,  spontaneously 
and  very  early  suggested  itself  to  the  human  race ;  neverthe- 
less, where  a  public  registry  of  mortgage  and  land  transfer 
has  been  established,  some  of  the  most  famous  and  luxuriant 
branches  of  law  show  a  tendency  to  dwindle  and  wither  away 
under  its  shadow.  Possession,  usucapion,  bonitarian  owner- 
ship, and  hypothek  occupy  together  a  prodigious  space  in  the 
Roman  jurisprudence  ;  the  bulk  of  what  corresponds  to  them 
in  other  systems  of  law  is  very  great ;  if  they  are  reduced  to 
a  fraction  of  their  present  dimensions,  the  diminution  of  the 
aggregate  body  of  law  will  be  extraordinary,  and  will  have 
been  produced  in  a  most  unexpected  way. 

'  I  have  dwelt  on  these  Continental  systems  of  land  regis- 
tration, and  on  the  effects  attributed  to  them  by  German 
juridical  opinion,  for  two  reasons. 

'  In  the  first  place,  the  fact  is  certainly  curious  that  the 
latest  improvements  in  the  mechanism  of  mortgage  and  land 
transfer  involve  a  reversion  to  the  primitive  publicity  of  con- 
veyance. The  public  register  at  some  accessible  spot,  in 
which  all  transactions  must  be  registered  under  penalty  of 


TRANSFER   OF   LAND  59 

immediately  forfeiting  all  their  benefits,  pretty  much  cor- 
responds to  the  primitive  assembly  of  the  village,  before  which 
all  transfers  of  shares  in  the  domain  must  be  accomplished, 
in  order  that  the  brotherhood  may  consent  to  them,  and 
supply  evidence  of  them  by  the  general  recollection.  It  is 
true  that  the  ancient  formalities  had  one  object  which  has 
nothing  to  do  with  the  modern.  The  primitive  publicity  of 
transfer  w-ent  with  a  most  rigid  exclusiveness,  and  the  public 
consent,  which  was  insisted  upon,  was  employed  to  refuse  the 
power  of  purchase  to  strangers.  The  decay  of  the  ancient 
public  conveyances  was  very  probably  caused  by  a  change  of 
circumstances,  which  made  the  communities  either  unable  or 
unwilling  to  maintain  their  collective  control  over  the  land  of 
their  domain.  In  modern  India  the  growth  of  wealth  has 
greatly  stimulated  the  spirit  of  individualism  ;  buyers  and 
sellers  of  land  alike  become  impatient  of  the  necessity  for 
obtaining  the  public  consent  of  the  villagers  to  their  bargain. 
The  modern  Anglo-Indian  is  unfavourable  to  these  archaic 
restrictions,  and  thus  the  primitive  public  methods  are  every- 
where giving  way  to  private  transfers,  which  assume,  I  am 
sorry  to  say,  at  present  very  heterogeneous  forms.  In  the 
historically  ancient  world  the  same  results  were  most  probably 
produced  by  conquest,  and  by  the  absorption  of  one  or  more 
of  the  primitive  proprietary  groups  by  others  stronger  than 
themselves. 

'  In  the  Roman  State,  including  a  population  even  more 
and  more  miscellaneous,  we  find  at  the  outset  of  legal  history 
a  mere  shadow  of  the  old  forms  of  transfer  in  the  "  Mancipa- 
tion," and  mancipation,  long  before  its  abolition  by  Justinian, 
was  subordinated  by  every  sort  of  legal  contrivance  to  mere 
delivery  or  "  tradition."  Yet  even  tradition,  when  it  became 
the  sole  Roman  conveyance,  retained  some  trace  of  the  insti- 
tutions out  of  which  it  grew.  The  Roman  law  never  to  the 
last  allowed  the  dominium  or  right  of  property  to  be  passed 
from  one  person  to  another  by  a  mere  contract ;  it  was  abso- 
lutely necessary  that  the  contract  should  be  followed  by  the 
delivery  of  the  thing  which  was  its  subject.  This  is  a 
peculiarity  which  has,  more  than  once,  caused  perplexity  to 
persons  who  have  consulted  the  Roman  law  of  transfer  in 


6o  MEMOIR   OF   SIR   HENRY   MAINE 

ignorance  of  its    being    founded    on    a   principle   which  the 
EngHsh  law  and  the  French  code  have  abandoned. 

'  The  other  fact  to  which  I  wish  to  call  attention  is  not 
merely  curious,  but  highly  instructive.  The  tendency  of 
German  juridical  opinion  which  I  have  mentioned  shows  that 
we  are  in  danger  of  over-estimating  the  stability  of  legal 
conceptions.  Legal  conceptions  are  indeed  extremely  stable  ; 
many  of  them  have  their  roots  in  the  most  solid  portions 
of  our  nature,  and  those  of  them  with  which  we  are  most 
familiar  have  been  for  ages  under  the  protection  of  irresis- 
tible sovereign  power.  Their  great  stability  is  apt  to  suggest 
that  they  are  absolutely  permanent  and  indestructible,  and 
this  assumption  seems  to  me  to  be  sometimes  made,  not 
only  by  superficial  minds,  but  by  strong  and  clear  intellects. 
I  am  not  sure  that  even  such  juridical  thinkers  as  Bentham 
and  Austin  are  quite  free  from  it.  They  sometimes  write  as 
if  they  thought  that,  although  obscured  by  false  theory,  false 
logic,  and  false  statement,  there  is  somewhere,  behind  all  the 
delusions  which  they  expose,  a  framework  of  permanent  legal 
conceptions  which  is  discoverable  by  an  eye  looking  through 
a  dry  light,  and  to  which  a  rational  code  may  always  be 
fitted.  What  I  have  stated  as  to  the  effects  upon  law  of  a 
mere  mechanical  improvement  in  land  registration  is  a  very 
impressive  warning  that  this  position  is  certainly  doubtful, 
and  possibly  not  true.  The  legal  notions  which  I  described 
as  decaying  and  dwindling  have  always  been  regarded  as 
belonging  to  what  may  be  called  the  osseous  structure  of 
jurisprudence.  The  fact  that  they  are  nevertheless  perishable 
suggests  very  forcibly  that  even  jurisprudence  itself  cannot 
escape  from  the  great  law  of  evolution.' 

Second,  but  only  second,  to  the  repression  of  the  sangui- 
nary raids  and  the  chronic  private  wars  which  desolated  India 
before  our  power  was  asserted  over  the  whole  peninsula,  ranks 
as  the  greatest  of  the  many  benefits  which  British  rule  has 
conferred  upon  India  the  wide  extension  of  codification. 
The  Indian  codes  are  not  complete,  and  what  exists  of  them 
is  not  perfect,  but  with  reference  to  the  large  portions  of  law 


THE    INDIAN    CODES  6l 

-of  which  they  treat  there  are  no  better  codes  in  the  world,  and 
if  they  are  compared  with  the  hideous  chaos  which  we  call 
law  at  home,  which  no  layman  understands  and  no  lawyer 
can  practise  without  having  a  library  at  his  elbow,  they  are  as 
light  to  darkness.  Macaulay's  admirable  dictum  has  been 
kept  in  view  throughout  their  formation.  '  Our  principle,'  he 
said,  '  is  simply  this.  Uniformity  when  you  can  have  it, 
diversity  when  you  must  have  it,  but  in  all  cases  certainty.' 
They  originated  in  a  correspondence  which  took  place  in  or 
about  1829  between  Sir  Charles  (afterwards  Lord)  Metcalfe 
and  the  judges  of  Bengal.  A  long  series  of  able  men  from 
Macaulay  downwards  have  contributed  to  make  them  what 
they  are.  The  only  pity  is  that  there  seems  just  at  present 
to  be  a  lull  in  the  activity,  not  of  their  framers,  but  of  those 
whose  business  it  is  to  enact  them  when  framed.  For  some 
reason  or  other,  the  Government  of  India  has  pigeon-holed 
for  many  years  a  Bill  drawn  by  the  hand  of  no  less  an 
authority  than  Sir  Frederick  Pollock  relating  to  torts  or 
actionable  wrongs.  There  may  be  some  good  reason  for 
this,  but  if  there  be,  it  has  not  been  made  known  to  those 
who,  one  would  expect,  would  be  best  informed  about  such 
matters. 

It  has  sometimes  been  imagined  that  certainty  of  law  was 
not  agreeable  to  the  races  of  India,  and  that  they  liked  better 
a  system  of  happy-go-lucky  and  individual  will.  A  greater 
mistake  was  never  made.  The  true  doctrine  on  that  subject 
was  admirably  put  some  years  ago  by  a  highly  respected 
leader  of  the  Indian  Muhammadans,  Sir  Sayyid  Ahmad  : — 

'  So  far  as  I  am  aware,  the  native  public  has  never  raised 
its  voice  against  codification.  To  them,  codified  laws  mean 
the  introduction  of  certainty  where  there  is  uncertainty, 
precision  where  there  is  vagueness.  Nor  can  it  be  said  that 
codification  is  unpopular,  even  among  the  most  conservative 
sections  of  my  countrymen.  I  must  have  lived  to  declining 
old  age  amongst  them  in  vain  if  I  am  not,  even  at  this  time 


62  MEMOIR   OF   SIR   HENRY    MAINE 

of  life,  in  a  position  to  say  confidently  that  of  all  the  innu- 
merable blessings  of  the  British  rule  the  one  my  countrymen 
esteem  most  is  justice.  Justice  in  their  eyes  means  peace 
and  order,  which  in  other  words  mean  security  to  life  and 
property — the  sole  aim  and  end  of  government.  At  present, 
whilst  a  splendid  penal  code  and  a  criminal  procedure  (code) 
regulate  criminal  matters,  the  civil  law  is  administered  on 
the  somewhat  vague,  though  noble,  principle  of  "justice, 
equity,  and  good  conscience  " — a  principle  much  of  whose 
beauty  is  practically  spoilt  by  the  fact  that  individual  judges 
in  similar  cases  do  not  take  the  same  view  of  that  noble 
maxim.  The  result  is  an  uncertainty  as  to  rights  which 
reduces  litigation  to  a  form  of  pecuniary  speculation,  [and] 
from  which  springs  that  most  deplorable  class  of  suits  in 
which  the  parties,  agreeing  as  to  facts,  have  no  authoritative 
means  of  ascertaining  the  law.  Codification,  and  codification 
alone,  can  remedy  the  evils  which  arise  from  uncertainty  of 
the  law  ;  codification  alone  can  enable  the  public  to  know 
their  exact  rights  and  obligations  ;  codification  alone  can 
enable  proprietors,  and  litigants,  advocates,  and  judges  to 
know  for  certain  the  law  which  regulates  the  dealings  of 
citizens  in  British  India  ;  codification  alone  will  enable  the 
deliberate  will  of  the  legislature  to  prevail  over  the  opinions 
of  individual  judges,  and  litigants  will  then  be  more  anxious 
before  going  into  court  to  consult  the  Statute-book  of  the 
land  than  the  mental  proclivities  of  the  individual  judges 
before  whom  their  disputes  may  have  to  go  for  decision.' 

There  is  not  the  shadow  of  a  doubt  that  all  of  us  in 
England — save  those  who  have,  or  think  they  have,  a  distinct 
interest  in  keeping  up  the  present  confusion  of  our  own 
system — would  hail  with  delight  the  codification  of  our  own 
law,  and  that  every  individual  in  the  community  would  greatly 
benefit  by  it  ;  but  to  hope  that  by  the  end  of  the  third 
decade  of  the  twentieth  century  we  shall  have  got  even  as  far 
as  they  have  got  in  India  now  would  be  to  be  very  sanguine 
indeed.  Nevertheless,  when  the  thing  has  once  been  done, 
every    decently  educated    man    and  woman  in  the    country 


'  EARLY   LAW   AND   CUSTOM  '  6$ 

will  say  that  it  ought  to  have  been  done  a  hundred  years 
before. 

In  1 88 1  Maine  deHvered  an  interesting  lecture,  at  the 
Royal  Institution,  upon  the  '  King  and  his  Relation  to  Early 
Civil  Justice.' 

In  the  year  1883  he  published  a  further  work  which  may 
be  considered  as  the  last  of  the  series  which  was  begun  with 
'  Ancient  Law  ; '  it  was  entitled  '  Dissertations  on  Early  Law 
and  Custom.'  Like  its  two  immediate  predecessors,  it  was  a 
result  of  its  author's  tenure  of  the  Corpus  professorship  of 
Jurisprudence,  but  the  chapters  of  which  it  was  composed  had 
been  a  good  deal  altered  in  the  interval  between  their  delivery 
as  lectures  and  their  being  placed  before  the  world  in  their 
final  shape.  Nearly  half  of  them  had  appeared  as  Articles 
in  Reviews.  The  sacred  books  of  the  East,  translated  under 
the  superintendence  of  Professor  Max  Miiller,  had  almost  as 
much  influence  on  this  work  as  the  translations  of  the  Brehon 
Law  Ti-eatises  had  upon  the  one  which  came  immediately 
before  it.  The  fifth  chapter,  on  '  Royal  Succession  and  the  Salic 
Law,'  shows  its  writer  at  his  very  best.  The  later  portions  of 
the  volume,  dealing  with  forms  of  property  and  tenure  and 
with  various  legal  survivals,  are  perhaps,  though  most  valuable, 
less  generally  interesting,  with  the  exceptions  of  chapter  eight 
on  '  East  European  House  Communities,'  and  chapter  nine  on 
the  '  Decay  of  Feudal  Property  in  France  and  England.' 

There  are  many  passages  in  this  work  which  might  be 
conveniently  detached  for  quotation  if  space  would  admit ; 
but  I  will  content  myself  with  one  : — 

'  There  is  reason,  in  fact,  to  believe  that  at  some  period  of 
human  history  a  revolution  took  place  in  the  status  of  aged 
men  not  perhaps  unlike  that  which  is  still  proceeding  in  the 
case  of  women.  There  is  abundant  testimony  that  tribes, 
long  pressed  hard  by  enemies  or  generally  in  straits  for  sub- 
sistence, systematically  put  their  members  to  death  when  too 
old  for  labour  or  arms.     The  place  from  which  a  wild  Slavonic 


■64  MEMOIR    OF   SIR   HENRY   MAINE 

race  compelled  their  old  men  to  leap  into  the  sea  is  still  shown. 
And  the  fiercer  savage  has  often  in  many  parts  of  the  world 
made  food  of  them.  Nevertheless,  the  ancient  records  of 
many  communities,  especially  those  of  Aryan  speech,  show 
us  old  age  invested  wath  the  highest  authority  and  dignity. 
Mr.  Freeman  has  given  a  long  list  of  honorific  names  belong- 
ing to  classes  or  institutions,  which  indicate  the  value  once 
set  by  advancing  societies  on  the  judgment  of  the  old.  Among 
them  are,  Senate,  <yspovala  (the  Spartan  senate),  Brj/xoyspovrss 
(its  Homeric  equivalent),  Trpsa^sis  (Ambassadors),  Ealdor- 
man,  Elder,  Presbyter,  Monseigneur,  Seigneur,  Sire,  Sir,  and 
Sheikh,  and  Mr.  Freeman  closes  with  the  Old  Man  of  the 
Mountain.  So  great  a  number  of  titles,  civil  and  ecclesiastical, 
are  evidence  of  a  very  strong  sentiment,  and  suggest  that 
this  exaltation  of  old  age  was  a  definite  stage  in  the  ascent  to 
civilisation. 

'  There  is  a  story  of  a  New  Zealand  chief  who,  questioned 
as  to  the  fortunes  of  a  fellow-tribesman  long  ago  well  known 
to  the  inquirer,  answered,  "  He  gave  us  so  much  good  advice 
that  we  put  him  mercifully  to  death."  The  reply,  if  it  was 
ever  given,  combines  the  two  views  which  barbarous  men 
appear  to  have  taken  at  different  times  of  the  aged.  At  first 
they  are  useless,  burdensome,  and  importunate,  and  they  fare 
accordingly.  But  at  a  later  period  a  new  sense  of  the  value 
of  wisdom  and  counsel  raises  them  to  the  highest  honour. 
Their  long  life  comes  to  be  recognised  as  one  of  preserving 
experience.  The. faculty  of  speech,  which  separates  man  from 
the  brute,  and  the  art  of  writing,  by  which  the  society  capable 
of  civilisation  is  distinguished  from  the  society  condemned  to 
permanent  barbarism,  are  simply  methods  by  which  experience 
is  enlarged,  compared  and  transmitted,  and  by  which  mankind 
is  enabled  to  have  more  of  it  than  is  contained  in  single 
separate  lives.  Yet  the  individual  life  is  always  the  original 
source  of  experience,  and  at  some  time  or  other  it  must  have 
been  perceived  that  the  more  the  individual  life  was  prolonged 
the  larger  was  its  contribution  to  the  general  stock.  This 
seems  the  best  explanation  of  the  vast  authority  which,  in  the 
infancy  of  civilisation,  was  assigned  to  assemblies  of  aged  men, 
independently  of  their  physical  power  or  military  prowess. 


'POPULAR   government'  65 

It  probably  sprang  up  among  communities  which  had  no 
writings  to  learn  from,  and  who  were  conscious  that  the  im- 
portance of  the  arts  which  were  necessary  for  their  very 
existence  was  out  of  all  proportion  to  the  average  shortness 
of  life.' 

The  contents  of  this  work,  while  highly  informing  to  all 
those  who  are  interested  in  the  very  earliest  history  of  the 
human  race,  were  not  calculated  to  attract  the  attention,  still 
less  to  excite  the  passions,  of  those  who  are  mainly  occupied 
with  the  events  of  the  day  and  the  probabilities  of  the  nearest 
future.     That  was  not  the  case  with  its  author's  next  book. 

In  1885  Sir  Henry  Maine  published,  under  the  title  of 
'  Popular  Government,'  four  essays,  the  substance  of  which  he 
had  contributed  to  the  '  Quarterly  Review.'  The  first  of  these 
was  entitled,  '  The  Prospects  of  Popular  Government,'  the 
second  *  The  Nature  of  Democracy,'  the  third  '  The  Age  of 
Progress,'  and  the  fourth  '  The  Constitution  of  the  United 
States.'  In  the  preface  he  informs  his  readers  that  it  had 
long  been  his  desire  to  apply  the  historical  method  to  the 
political  institutions  of  men  as  he  had  in  his  '  Ancient  Law ' 
and,  as  he  might  have  added,  in  other  works  which  have  been 
already  noticed,  to  their  private  laws  and  institution.s.  Just, 
however,  as  he  had  found  the  path  of  his  legal  investigations 
obstructed  by  baseless  theories  about  a  law  and  state  of 
nature  antecedent  to  all  laws  of  which  history  makes  mention, 
so  he  found  the  path  of  his  political  investigations  obstructed 
by  other  equally  fantastic  assumptions  about  a  series  of 
political  institutions  of  which  history  makes  no  mention,  but 
which  a  number  of  writers,  with  Rousseau  at  their  head,  have 
imagined  to  have  existed  in  a  period  antecedent  to  history. 
The  political  institutions  of  this  far-off  time  were  conceived 
by  those  writers  to  have  been  of  a  highly  popular  character. 
Maine's  object  in  writing  this  work  was  to  examine  the 
phenomena  of  popular  governments  in  so  far  as  they  had 
been  registered  by  those  who  had  observed  them,  putting  out 

F 


66  MEMOIR   OF   SIR   HENRY   MAINE 

of  sight  all  theories  about  a  state  of  things  with  regard  to 
which  it  was  simply  impossible  to  know  anything  whatever. 
In  the  first  essay  he  maintains,  z'«/<?r «/?'«,  that  popular  govern- 
ment since  its  reintroduction  into  the  world  after  the  long 
interval  which  followed  the  disappearance  of  such  popular 
governments  as  existed  in  antiquity,  has  been  extremely 
fragile.  In  the  second  essay  he  gave  some  reasons  for  thinking 
that,  at  least  in  its  extreme  form,  popular  government  was 
exceedingly  difficult.  In  the  third  he  argues  that  the  per- 
petual change  which  accompanies  what  we  call  '  progress '  is 
not  in  accordance  with  the  facts  of  human  nature  in  so  far  as 
these  facts  have  been  observed  and  registered,  not  deduced 
from  some  hypothesis  as  to  what  human  nature  ought  to  be. 
In  the  fourth  he  examines  the  constitution  of  the  United 
States,  and  draws  special  attention  to  such  of  its  provisions 
as  are  calculated  to  minimise  some  inconveniences  which  he 
believed  to  attach  to  it. 

It  was  inevitable  that  in  a  work  of  this  kind  a  good  deal 
should  be  said  which  conflicted  with  hopes  and  expectations 
very  widely  received.  As  I  have  already  pointed  out,  Maine's 
connections  were  originally  with  the  Liberal-Conservative  or 
Conservative-Liberal  party ;  and,  although  he  never  was  a 
politician,  and  twice  refused — first  on  the  retirement  of  Mr. 
Walpole,  then  on  the  death  of  Mr.  Hope — to  represent  the 
University  of  Cambridge  in  the  Conservative  interest,  his 
sympathies  with  what  we  may  call  the  liberalism  of  the 
centre  were  imperfect,  while  he  had  absolutely  no  sym- 
pathy at  all  with  the  very  different  opinions  which  are  now 
described  as  Liberalism  in  Gladstonian  circles. 

I  find  it  difficult,  however,  to  think  of  Maine  as  an 
English  politician  at  all.  The  circumstances  of  his  life  had 
kept  him  far  away  from  the  din  of  our  Parliamentary 
smithery. 

It  was  inevitable,  however,  that  a  book  like  '  Popular 
Government'  should  be  treated  as  a  '  rattling  political  pam- 


'POPULAR    GOVERNMENT'  6/ 

phlct '  by  those  who  did  not  agree  with  the  conclusions  to 
wliich  it  pointed,  and  so  it  was  ;  while,  on  the  other  hand, 
it  reached  a  class  of  sympathetic  readers  which  had  never 
occupied  itself  with  its  author's  earlier  works.  It  is  no  part 
of  the  duty  of  the  writer  of  a  brief  memoir  like  this,  or  even 
of  a  biographer,  to  make  himself  a  judge  or  a  divider  in  such 
controversies,  more  especially  if  his  strong  bias  in  favour  of 
one  party  in  the  State  is  a  matter  of  notoriety  ;  but  as- 
suredly '  Popular  Government '  is  not  a  book  which  any 
Englishman  who  studies  politics  can  afford  to  leave  unread. 

In  1886,  Maine  contributed  to  the  'Quarterly  Review  '  an 
article  on  the  '  Patriarchal  Theory.'  It  is  a  temperate  and 
judicious  review  of  the  rival  theories  of  Mr.  J.  F.  McLennan, 
of  his  brother,  of  Mr.  L.  Morgan  and  others,  counselling  their 
partisans,  always  ready  to  send  the  souls  of  their  opponents 
to  eternal  perdition  for  their  '  theory  of  the  irregular  verbs,' 
to  greater  moderation  in  controversy  and  to  a  more  patient 
inquiry  into  the  extremely  complicated  facts  which  underlie 
their  lucubrations. 

In  1886  he  published  a  brief  but  notable  article  in  the 
^  Nineteenth  Century.'  This  was  a  reply  to  a  paper  in  the 
preceding  number  of  that  review,  by  Mr.  Godkin,  the  well- 
known  editor  of  the  American  newspaper  '  The  Nation.'  Mr. 
Godkin  had  criticised  '  Popular  Government,'  but  Maine 
shows  that  his  critic  had  been  misled  by  a  hasty  perusal  or 
imperfect  recollection  of  what  were,  indeed,  carefully  weighed 
and  guardedly  expressed  sentences.  The  article  ends  with 
the  words  :  — 

'  Mr.  Godkin  seems  to  think  that  the  only  evidence  worth 
mentioning  for  the  duration  of  democracy  is  that  furnished 
by  the  United  States,  and  I  think  so  too.  He  thinks,  at 
least  he  gives  reasons  for  thinking,  that  the  prospects  of 
scientific  thought  in  democratic  societies  are  very  gloomy, 
and  that  also  is  my  opinion.  We  have  reached  these  results 
by  different  routes,  but  the  results  do  not  greatly  differ.' 

F  2 


68  MEMOIR   OF   SIR    HENRY   MAINE 

He  kept  up  to  the  end  his  old  interest  in  journaHsm, 
writing  every  now  and  then  in  some  of  the  most  important 
newspapers.  I  do  not  know  to  what  extent  he  treated  in 
later  years  the  mere  passing  subjects  of  the  hour,  but  I  have 
repeatedly  seen  articles  which  were  obviously  from  his  pen 
on  such  subjects  as  the  '  Constitution  of  Upper  Houses  in 
Various  States,'  and  on  many  large  questions  of  Indian 
Government. 

In  the  year  1887  Sir  Henry  Maine  contributed  a  paper 
on  India  to  the  interesting  volume  edited  by  Mr.  Humphry 
Ward,  under  the  title  of  *  The  Reign  of  Queen  Victoria,'  in 
connection  with  the  Jubilee.  It  is  not  long — a  little  under 
seventy  pages  of  pretty  large  print,  but  I  could  not  refer  a 
foreign  inquirer  to  anything  at  all  of  the  same  length  from 
which  he  would  obtain  so  many  correct  ideas  about  our 
wonderful  Eastern  experiment.  Some  portions  of  it — as,  for 
instance,  that  which  relates  to  Mr.  Bright's  views  about  the 
mischief  of  over-centralisation  in  India — may  even  be  studied 
and  meditated  with  advantage  by  some  persons  who  have 
given  very  serious  attention  to  the  future  of  that  country.  It 
is  all  the  more  creditable  to  Sir  Henry  that  he  should  have 
come  to  such  wise  conclusions  because  he  had  looked  at 
Indian  affairs  only  from  the  point  of  view  of  the  Central 
Government,  first  at  Calcutta  and  then  in  the  India  Office.  It  is 
easy  enough  for  one  who  has  been  long  at  the  centre  of  Indian 
affairs,  and  has  then  seen  the  working  of  the  machine  from  the 
provincial  point  of  view,  to  see  its  defects  in  the  matter  of 
over-centralisation,  but  very  much  more  difficult  to  do  so 
without  the  help  of  the  second  kind  of  experience. 

About  the  time  that  this  masterly  essay  appeared,  Maine 
succeeded  Sir  William  Harcourt  as  Whewell  Professor  of 
International  Law  at  Cambridge.  His  new  appointment  gave 
him  an  additional  tie  to  his  University,  and  made  him  think 
very  seriously  of  leaving  the  India  Office  for  duties  which 
were  even  more  congenial.    Before  he  went  to  Calcutta,  he  had 


RETURN    TO    CAMBRIDGE  69 

written  a  book  on  International  Law,  the  manuscript  of  wliich 
somehow  disappeared  in  his  absence.  This  accident  no  doubt 
cost  him,  and  would  have  cost  him  had  he  lived,  a  good  deal 
of  trouble  ;  but  the  studies  of  a  quarter  of  a  century  and 
a  large  experience  of  affairs  must  have  very  considerably 
modified  his  views,  and  it  would  probably  have  been  better 
for  his  fame  that  it  should  have  rested  on  his  mature  work. 
He  was  not  destined,  however,  to  leave  much  behind  him  on 
a  subject  on  which  his  viitis  sapientia  would  have  been  pre- 
eminently valuable  ;  he  only  delivered  one  course  of  lectures, 
and  these  never  received  his  final  revision.  The  book  in  which 
they  are  contained,  entitled  '  International  Law,'  was  published 
after  his  death.  The  fact  that  it  received  the  editorial  care 
of  his  pupil  and  intimate  friend,  Mr.  Frederic  Harrison,  as 
well  as  that  of  Sir  F.  Pollock,  is  a  guarantee  to  the  public 
that  the  work  was  as  well  done  as  it  could  be,  but  the 
volume  remains  a  fragment — a  torso,  not  a  statue. 

These  lectures  having  only  been  corrected  for  delivery  by 
the  author,  and  not  revised  for  the  press  by  him,  must  be 
judged  merely  as  twelve  lectures  given  in  a  single  term  and 
intended  to  form  part  of  a  very  much  longer  course,  of  which, 
probably,  only  the  essence  would  have  been  laid  before  the 
public  in  the  form  of  a  book  or  books.  Judged  as  lectures 
they  do  no  sort  of  discredit  to  their  author's  reputation,  and 
remind  me  often  of  those  which  were  afterwards  worked 
together  into  Ancient  Law,  though  of  course  he  w^as  dealing 
in  them  with  a  subject  the  outlines  of  which  are  more  familiar 
to  many  of  us  than  was  the  matter  which  he  treated  at  the 
Middle  Temple  in  his  early  days. 

He  began  the  first  of  his  lectures,  which  treats  of  the  origin 
and  sources  of  International  Law,  by  recalling  the  injunction 
of  the  founder  of  the  chair  that  its  occupant  should  make  it 
his  aim,  in  all  parts  of  his  treatment  of  the  subject,  to  lay 
<lown  such  rules  and  suggest  such  measures  as  might  tend  to 
diminish  the  evils  of  war  and  finally  '  to  extinguish  war  among 


70  MEMOIR   OF   SIR    HENRY   MAINE 

nations.'  He  proceeded  to  point  out  the  immense  forces 
arrayed  against  this  most  blessed  consummation  :  the  enor- 
mously increased  armies  of  the  Continent,  far  greater  in  peace 
than  they  ever  were  even  in  the  days  of  the  Napoleonic 
struggles,  the  vast  amount  of  intellect  which  now  goes  to  the 
perfecting  of  warlike  appliances,  the  huge  expenditure  of 
treasure  which  a  single  naval  battle  would  bring  about,  when 
a  gun  which  can  only  fire  1 50  shots  without  being  repaired 
costs  20,000/.  and  has,  during  its  brief  life,  fired  away  more 
than  its  own  value  in  charges.  Well  might  he  add  :  '  I  repeat, 
then,  my  question,  when  the  forces  at  work  are  so  enormous, 
how  shall  they  be  controlled,  diminished,  or  reduced  by  a 
mere  literary  agency  ? ' 

He  commences  his  reply  to  that  question  by  pointing  out 
that,  bad  as  things  are,  they  were  once  very  much  worse. 
War  was  originally  the  rule,  peace  the  exception  ;  prisoners 
were  murdered  with  the  utmost  barbarity.  Even  slavery  was 
a  humanitarian  reform.  Very  slowly  and  gradually  wars  had 
been  getting  less  hideous,  when  the  religious  quarrels  of  the 
i6th  century  stimulated  human  passions  to  a  frightful  degree, 
and  a  recrudescence  of  horrors  was  the  result.  These  horrors 
produced  a  great  effect  upon  contemporaries,  and  had  a  share 
in  calling  into  existence  the  body  of  jurists  who,  from  Grotius 
to  Vattel,  built  up  the  system  which  we  now  know  as  Inter- 
national Law.  In  laying  the  foundations  of  their  system  they 
availed  themselves  to  a  great  extent  of  the  Roman  law,  which 
had  never  wholly  died  out  in  Europe,  but  had  been  contentedly 
used  by  jurists  to  eke  out  the  provisions  of  barbarian  codes. 
The  portion  of  it  which  they  found  most  ready  to  their  hand 
was  the  Jus  Gentium  originally  created  by  the  Roman 
praetor  peregrinus  when  he  selected  the  rules  of  law  common 
to  Rome  and  to  the  different  Italian  communities  in  which 
the  immigrants  into  Rome  were  born.  This,  in  its  turn,  when 
seen  in  the  light  of  Stoic  doctrine,  became  identified  in  the 
minds  of  educated  Romans  with  the  Law  of  Nature — that  is» 


'LECTURES   ON    INTERNATIONAL   LAW' 


71 


the  sum  of  the  principles  of  conduct  which  man  in  society  was 
imagined  by  the  best  minds  in  Rome  to  obey  simply  because 
he  was  man.  If  we  ask  when  this  idea  grew  up,  Maine  would 
point  to  the  fruitful  300  years  of  the  Roman  peace,  the  very 
period  during  which  the  Christian  Church  was  consolidating 
itself. 

Having  pointed  out  how  International  Law  arose,  Maine 
then  examines  its  authority  and  sanction,  showing  how  it  is 
not  a  law  in  the  sense  in  which  that  word  is  used,  and  very 
properly  used,  by  Austin,  but  that  the  founders  of  Inter- 
national Law,  if  they  did  not,  and  could  not,  create  what  that 
writer  and  other  jurists  call  a  '  sanction,'  nevertheless  created 
a  law-abiding  sentiment  which  makes  it  most  desirable  that 
those  who  are  concerned  with  public  affairs  should  be 
acquainted  with  such  portions  of  International  Law  as  appear 
to  be  reasonably  settled. 

The  third  and  fourth  lectures  deal  clearly  and  ably  with 
State  Sovereignty  and  territorial  rights  of  sovereignty,  but 
the  fifth  and  sixth  are  more  important — are  indeed  the  most 
important  in  the  volume,  for  in  them  Sir  Henry  took  for  his 
subject  Maritime  Belligerency  and  the  Declaration  of  Paris, 
matters  of  paramount  importance  to  this  country,  but  which, 
to  the  disgrace  of  British  statesmanship,  have  never  been 
really  faced  by  either  of  our  great  parties.  They  were  dis- 
cussed in  the  House  of  Commons  in  1862,  in  1877,  and  in 
1878.  All  these  debates  I  heard,  taking  part  in  two  of  them, 
and  in  all  of  them  I  think  the  advantage  remained  with  the 
advocates  of  the  views  which  afterwards  found  favour  with 
Sir  Henry  Maine.  Lord  Palmerston  in  the  year  1856  accepted 
these  views  to  a  very  great  extent ;  but  he  afterwards  recanted 
and  declared  that  to  give  up  our  rights  of  capturing  the 
enemy's  mercantile  marine  would  be  to  commit  an  act  of 
political  suicide. 

After  the  Crimean  war,  when  the  United  States  declined 
to  adhere  to  the  Declaration  of  Paris  unless  private  property 


72  MEMOIR   OF   SIR    HENRY   MAINE 

was  exempted  from  capture  at  sea,  the  question  might  have 
been  easily  settled.  It  is  not  impossible  that  it  might  have 
been  settled  at  Berlin  in  1878.  Now,  however,  it  is  much 
to  be  feared  that  it  will  be  more  difficult  to  get  other  States 
to  see  that  all  the  world  would  benefit  by  changes  which 
might,  as  Sir  Henry  well  says,  '  be  suggested  by  some  very 
great  friend  of  this  country.'  However  much  we  may  increase 
our  navy,  we  shall  be  wholly  unable  to  prevent  very  serious 
losses  to  our  mercantile  marine  as  long  as  the  present 
detestable  state  of  the  law  is  allowed  to  endure.  Whatever 
may  be  the  bearing  upon  other  nations  of  the  changes  sug- 
gested, it  is  for  us  of  immense  importance  that  the  power  of 
seizing  or  destroying  private  property  at  sea  should  be  utterly 
abolished,  that  the  list  of  articles  which  should  be  considered 
contraband  of  war  should  be  made  as  short  as  possible,  and 
that  the  whole  subject  of  the  right  of  blockade  should  be 
carefully  examined  with  reference  to  the  present  state  of 
land,  as  well  as  of  sea,  communications.  It  is  a  vain  labour 
to  blockade  a  coast,  if  the  people  living  on  that  coast  can 
obtain  the  goods  of  which  you  want  to  deprive  them  by 
half  a  dozen  railways  running  thither  from  the  interior  of 
their  territory. 

The  next  five  lectures  treat  chiefly  of  the  changes  that 
have  been  introduced  into  the  customs  of  war  during  the 
course  of  history,  and  more  especially  of  those  customs  as 
now  followed  by  civilised  nations.  Due  credit  is  given  to  the 
initiative  taken  by  the  late  Czar  in  trying  to  bring  about  a 
mitigation  of  the  horrors  of  the  battlefield,  and  much  use  is 
made  of  the  Manual  compiled  chiefly,  it  would  appear  by 
Lord  Thring,  for  the  use  of  English  officers  in  the  field. 
Every  page  of  this  portion  of  the  work  is  worth  study,  but 
the  twelfth  and  last  lecture  is  probably  the  most  valuable 
after  the  fifth  and  sixth.  In  it  Sir  Henry  discusses  the 
possibility  of  abating  war  by  arbitration,  points  out  the  very 
grave  inconveniences  of  the  present  system  of  appointing  a 


LAST    ILLNESS   AND   DEATH  73 

Court  of  Arbitration  ad  hoc,  more  especially  in  the  case  of  a 
State  like  England,  of  whose  comparatively  great  prosperity 
all  other  nations  are  jealous.  He  then  shows  that  a  standing 
Court  of  Arbitration  supported  by  all  the  Powers  would  have 
many  advantages,  but  would  nevertheless  labour  under  the 
master  disadvantage  of  having  no  force  behind  it,  unless  all 
the  Powders  were  to  hold  themselves  prepared  to  intervene  to 
make  the  intending  belligerent,  against  whom  the  tribunal 
decided,  keep  the  peace,  an  arrangement  which  would  neces- 
sitate keeping  on  foot  the  existing  great  peace  armaments. 
If  these  continue  Europe  may  well  be  reduced,  as  Gambetta 
once  put  it  in  a  conversation  with  me,  '  to  beg  at  the  gates  of 
the  barracks.'  Probably  Sir  Henry  is  right  in  thinking  that 
no  sweeping  remedy  for  that  and  other  evils  can  be  introduced, 
but  that  something  like  the  functions  of  the  Greek  Amphik- 
tyony  can  be  provided  by  great  leagues  of  peace  such  as  that 
of  which  we  hear  so  much  at  present. 

I  cannot  say  that  when  I  returned  from  India  in  the 
spring  of  1887,  after  an  absence  of  between  five  and  six  years, 
I  found  Maine  much  changed.  He  had  lost  some  of  his 
interest  in  things  around  him,  but  did  not  appear  to  me  in  a 
much  worse  state  of  health  than  usual.  I  met  him,  as  it 
turned  out  for  the  last  time,  at  the  Deanery  of  Salisbury, 
where  we  spent  a  day  or  two  together  in  the  July  of  1887. 
He  did  not  take  very  much  part  in  conversation,  but  nothing 
led  me  to  suppose  that  he  was  breaking  up.  In  the  autumn 
I  went  to  Syria,  and  in  the  course  of  the  winter  received 
a  letter  from  a  friend  at  Cannes  to  say  that  Maine  had  arrived 
there  in  very  bad  health.  I  replied  that,  although  Maine's 
health  was  liable  to  be  disturbed  by  very  frequent  illnesses, 
I  thought  he  would  live  to  be  quite  an  old  man.  I  was 
mistaken,  however,  and  not  on  this  occasion,  as  in  1862, 
agreeably  ;  for  ere  very  long  I  heard  that  he  had  died  on 
February  3,  apoplexy  being  the  immediate  cause. 

From  what  I  have  since  learnt,  he  must  have  been  getting 


74  MEMOIR   OF   SIR   HENRY   MAINE 

rapidly  weaker  all  through  the  autumn,  and  I  have  been  told 
by  a  gentleman  who  saw  him  on  his  journey  to  Cannes  that 
he  thought  the  symptoms  even  then  excessively  grave. 

Sir  Henry  Maine  left  a  widow  and  two  sons  to  deplore 
his  loss,  but  the  eldest  son  Charles — a  young  man  of  much 
promise  though  of  very  delicate  health,  who  had  done  some 
good  work  in  Egypt,  and  was,  when  he  died,  clerk  of  assize 
on  the  South  Wales  circuit — did  not  long  survive  his  distin- 
guished father. 

Sir  Henry's  features  have  been  perpetuated  most  suc- 
cessfully in  an  admirable  portrait  at  Trinity  Hall  by  his 
connection  and  friend  Mr.  Lowes  Dickinson,  and  by  a 
medallion  in  Westminster  Abbey,  which  is  far  from  being 
worthy  of  the  well-deserved  reputation  of  Sir  Edgar  Boehm. 
It  is  placed  in  a  portion  of  the  building  to  which  a  good  deal 
of  Indian  fame  has  found  its  way,  some  of  it  of  a  secondary 
kind  ;  but  there,  too,  an  inconspicuous  bust  recalls  to  a  gene- 
ration which,  chiefly  through  the  labours  of  Maine's  intimate 
friends  Sir  James  Stephen  and  Sir  John  Strachey,  is  begin- 
ning to  judge  of  him  more  justly,  the  mighty  name  of 
Warren  Hastings. 

The  chorus  of  appreciation  which  rang  through  the  press 
for  some  days  after  the  death  of  Sir  Henry  Maine  was  known 
showed  how  widely  he  had  been  appreciated  amongst  able 
men  who  took  very  different  views  of  most  things  divine  and 
human.  The  '  Times  '  spoke  of  him  as  a  man  of  the  calibre  of 
Montesquieu  and  De  Tocqueville,  brought  out  the  relation 
between  Ancient  Law  and  Darwin's  '  Origin  of  Species,'  pub- 
lished shortly  before  it — '  the  pregnant  conception  of  evolu- 
tion being  the  link  that  binds  them  together' — and  quoted 
from  a  private  letter  of  the  year  1885,  in  which,  speaking  of 
Mr.  Morley's  criticisms  on  '  Popular  Government,'  he  said  : 

'  If  there  were  an  ideal  Toryism  I  should  probably  be  a 
Tory  ;  but  I  should  not  find  it  easy  to  say  which  party  I 
should  wish  to  win  now.     The  truth  is,  India  and   the  India 


ENGLISH   OPINION    OF    MIS   WORK  75 

Office  make  one  judge  public  men  by  standards  which  have 
little  to  do  with  public  opinion.' 

The  '  St.  James's  Gazette '  mentioned  the  fact  that  Maine 
had  been  among  its  most  frequent  contributors,  and  added  : 

'  In  his  earlier  days  he  would  have  called  himself  a 
Liberal,  seeing  that  he  favoured  on  the  whole  that  moderate, 
cautious,  constitutional  Liberalism  which  in  the  past  has 
done  so  much  for  liberty,  for  progress,  and  for  ordered  reform. 
Latterly  he  was  a  pronounced  and  uncompromising  Anti- 
Radical,  because  he  saw,  perhaps  more  clearly  than  any 
man  alive,  that  Radicalism  pushed  to  its  logical  conclusions 
means  the  rule  of  ignorance,  of  charlatanism,  of  blind  rapacity, 
and  the  banishment  from  the  sphere  of  politics,  of  science,  of 
sober  sense,  of  experience  ripened  by  learning  and  knowledge 
of  affairs.' 

The  '  Spectator '  said  : 

'  Sir  Henry,  for  all  his  wisdom,  could  not  have  governed 
a  kingdom.  His  mind  foresaw  dangers,  difficulties,  impedi- 
ments with  too  keen  a  glance,  and  in  the  supreme  hour  he 
would  have  shrunk  from  indispensable  decisions.  He  had 
neither  the  force  nor  the  energy  of  Lord  Lawrence,  who, 
nevertheless,  though  his  temptation  was  to  over-estimate 
"  go,"  recognised  to  the  full  the  great  powers,  sometimes  even 
the  superiority,  of  his  wise  and  learned  coadjutor.  What  Sir 
Henry  could  do,  and  constantly  did  do,  was  to  bring  his 
magnificent  brain  to  bear  on  a  mass  of  observed  facts,  recon- 
cile them,  detect  the  law  which  governed  them,  and  suggest 
legislative  action  in  words  of  unequalled  persuasiveness.  In 
this  latter  faculty,  that  of  convincing  qualified  minds.  Sir 
Henry  Maine  was  possibly  unrivalled  in  his  generation  ;  and 
the  way  in  which  he  employed  it  was  as  special  as  his  success. 
He  melted  his  opponent's  views. 

Sir  Frederick  Pollock,  who  has  been  already  quoted,  and 
who  is  brought,  in  the  nature  of  things,  into  the  closest  con- 
tact with  students  of  jurisprudence,  says  : 


76  MEMOIR    OF   SIR   HENRY   MAINE 

'  For  the  present  we  may  at  least  say,  looking  to  our  own 
science  of  law,  that  the  impulse  given  by  Maine  to  its  intelli- 
gent study  in  England  and  America  can  hardly  be  overrated.' 

And  again  : 

'  At  one  master-stroke  he  forged  a  new  and  lasting  bond 
between  history  and  anthropology.  Jurisprudence  itself  has 
become  a  study  of  the  living  growth  of  human  society  through 
all  its  stages.  And  it  is  no  longer  possible  for  law  to  be  dealt 
with  as  a  collection  of  rules  imposed  on  societies,  as  it  were, 
by  accident,  nor  for  the  resemblances  and  differences  of  the 
laws  of  different  societies  to  be  regarded  as  casual' 

Not  a  few  foreign  scholars  have  in  various  ways  expressed 
their  admiration.  Professor  F.  von  Holtzendorff  wrote  about 
Sir  Henry  in  the  '  Law  Review,'  as  did  the  French  M.  Glasson 
and  the  Italian  M.  Cogliolo. 

M.  Courcelle  Seneuil,  in  an  interesting  introduction  to  his 
translation  of '  Ancient  Law,'  says  that  the  only  French  work 
which  can  be  compared  with  it  is  the  '  Cite  Antique,'  by  M. 
Fustel  de  Coulanges.  He  appreciates  in  the  very  highest 
degree  the  merit  of  Maine's  great  work,  and  his  praise  is  all 
the  more  valuable  because  he  makes  some  reservations,  think- 
ing the  great  English  jurisconsult  has  not  attached  sufficient 
importance  to  commercial  usage  as  an  agency  in  modifying 
and  reforming  laws.  He  points  out,  too,  that  Maine  by  his 
use  of  the  term  Benthamism  gives,  no  doubt  unintentionally, 
to  Jeremy  Bentham  the  honour  which  is  certainly  largely 
due  to  older  thinkers,  more  especially  to  Ouesnay  and 
Turgot. 

One  of  the  best  articles  upon  Sir  Henry  which  I  have  seen 
appeared  in  the  '  Revue  Generale  du  Droit,'  with  which  he 
had  been  connected.  The  '  Notice  sur  la  vie  et  les  travaux 
de  M.  Sumner  Maine '  for  the  '  Academic  des  Sciences 
morales  et  politiques '  was  signed  by  M.  Rodolphe  Dareste, 
Member  of  the  Institut  and  author  of  the  'Etudes  d'  Histoire 
du  Droit'     It  ends  as  follows  : — 


FOREIGN    OPINION    OF    HIS   WORK  77 

'  Les  idees  politiques  de  M.  Maine  ont  etc  vivement  dis- 
cutees.  Qu'on  les  partage  ou  qu'on  les  combatte,  elles  n'en 
meritent  pas  moins  I'attention  et  le  respect,  comme  le  juge- 
ment  d'un  profond  observateur  sur  les  evenements  contem- 
porains.  Mais  le  principal  titre  de  M.  Maine  a  I'estime  du 
monde  savant  consistera  toujours  dans  ses  precedents  ouvrages, 
etdans  I'impulsion  extraordinaire  qu'il  a  imprimee  a  la  science 
du  droit.  Ses  livres  ont  ete  traduits  dans  toutes  les  langues 
de  rEurope,  et  les  editions  ont  etc  multipliees.  Bien  peu 
d'ouvrages  de  droit  ont  eu  pareille  fortune.  Et  pourtantceux 
de  M.  Maine  ne  sont  pas  toujours  d'une  lecture  facile.  La 
perspective,  qui  met  en  relief  les  choses  principales  et  rclegue 
au  second  plan  les  accessoires,  I'unite,  qui  subordonne  tous 
les  developpements  a  une  seule  pensee  dominante,  I'enchaine- 
ment,  qui  les  rattache  etroitement  les  uns  aux  autres,  sont 
des  qualites  auxquelles  les  Anglais  sont  moins  sensibles  que 
nous  et  que  M.  Maine  ne  recherche  pas.  Son  style  est  celui 
d'une  conversation  familiere,  pleine  de  digressions  et  d'anec- 
dotes,  eblouissante  par  le  piquant  de  la  forme  et  surtout  par 
I'abondance  des  idees  qui  semblent  jetees  au  hasard  et  a  pleines 
mains.  II  est  peut-etre  parfois  difficile  de  le  resumer,  mais  il 
est  impossible  de  le  lire  sans  eprouver  cette  excitation  qui  tient 
I'esprit  en  eveil  et  le  pousse  en  avant.  Celaseul  suffirait  pour 
faire  vivre  les  ouvrages  de  M.  Maine.  En  ce  siecle  oil  la  science 
marche  vite,  ils  seront  bientot  depasses  ;  ils  le  sont  deja, 
pour  le  fond.  Mais  il  restera  toujours  I'impulsion  donnee,  la 
methode  pratiquee,  les  idees  largement  repandues.  C'est  la 
I'essentiel.  M.  Maine  a  done  bien  servi  la  science,  et  I'lnstitut 
de  France  doit  lui  etre  reconnaissant.' 

If  M.  Dareste  puts  it  a  little  too  strongly  when  he  says 
that  Maine's  works  have  been  translated  into  all  the  lan- 
guages of  Europe,  they  have  undoubtedly  been  translated  into 
many  of  them  ;  '  Ancient  Law  '  even  into  Hungarian,  '  Village 
Communities  '  very  naturally  into  Russian,  where  these  highly 
interesting  relics  of  the  past  still  survive. 

His  career  was  well  summed  up  in  the  tablet  erected  in 
the  cloisters  of  Christ  Hospital,  to  which  I  have  alluded  on  a 
previous  page. 


78  MEMOIR   OF   SIR    HENRY   MAINE 

IN    MEMORY    OF 

SIR  HENRY   JAMES   SUMNER   MAINE, 

K. C.S.I. ,  F.R.S.,  LL.D.  CAMB.,  D.C.L.  OXON. 

Entered  in  1829  as  a  Scholar  of  this  House,  he  proceeded  there- 
from to  Pembroke  College,  Cambridge,  in  1840,  on  one  of  the 
Hospital's  Exhibitions  ;  and,  after  an  exceptionally  brilliant  University 
career,  in  which  he  gained  the  highest  honours,  was  chosen  Tutor  of 
Trinity  Hall  ;  and  shortly  afterwards,  in  1847,  Regius  Professor  of 
Civil  Law  in  the  University.  Called  to  the  Bar  in  1850  by  the 
Honourable  Societies  of  Lincoln's  Inn  and  the  Middle  Temple  (to 
which  latter  Society  he  was  sometime  Reader  in  Jurisprudence  and 
Civil  Law),  he  published  in  1861  his  great  work  on  'Ancient  Law.' 
In  1862  he  proceeded  to  India  as  Legal  Member  of  the  Supreme 
Council  of  the  Governor-General,  at  the  most  critical  period  in  the 
history  of  English  law  and  judicature  in  that  vast  dependency.  He 
was  afterwards  elected  Chancellor  of  the  University  of  Calcutta. 
Returning  to  England  in  1869,  he  was  elected  Corpus  Professor  of 
Jurisprudence  in  the  University  of  Oxford,  and  in  1870  appointed 
under  special  Act  of  Parliament  life  member  at  the  seat  of  govern- 
ment in  London  of  the  Council  of  the  Secretary  of  State  for  India. 
In  1877  he  was  unanimously  elected  Master  of  Trinity  Hall;  in 
1883  made  Foreign  Associate  of  the  Institute  of  France;  in  1887 
elected  Whewell  Professor  of  International  Law  in  the  University  of 
Cambridge  ;  and  in  the  same  year  Honorary  Fellow  of  Pembroke 
College. 

He  died  suddenly  at  Cannes,  in  the  fulness  of  his  intellectual 
powers,  on  February  3,  1888  :  Christ's  Hospital  thus  losing  a  most 
illustrious  son,  the  State  one  of  its  most  eminent  jurists  and  legislators, 
the  republic  of  letters  one  of  its  most  brilliant  luminaries. 

This  tablet  is  erected  by  governors  and  former  scholars,  that  for 
all  succeeding  generations  of  '  Blues  '  it  may  point  the  moral : — 

'  Success  and  Glory  are  the  children  of  Hard  Work  and 
God's  Favour.' 


It  is  an  open  secret  that  the  masterly  sketch  of  his  cha- 
racter in  the  '  Saturday  Review'  of  February  11,  1888,  which 
I  am  permitted  to  reproduce,  was  the  work  of  one  who  was 
more  intimately  associated  with  him  in  public  and  in  private 
than  was  any  other  man. 


THE   '  SATURDAY   REVIEW  '  79 

'  The  admirable  biographical  notice  of  Sir  Henry  Maine 
which  appeared  in  the  "  Times  "  on  Monday  last  would  dis- 
pense us  from  saying  anything  more  if  he  had  not  stood  in  a 
peculiar  relation  to  the  "  Saturday  Review,"  and  to  most  of  its 
original  contributors,  of  whom  he  was  one  of  the  most  dis- 
tinguished. This  article  is  written  by  one  of  them  who  knew 
him  for  more  than  forty  }'ears  ;  lived  with  him  during  nearly 
the  whole  of  that  long  period  upon  terms  of  brotherly  intimacy 
and  affection,  never  interrupted  by  the  smallest  passing  cloud, 
and  was  for  upwards  of  thirty  years  connected  in  the  closest 
way  with  all  his  undertakings,  literary,  legal,  and  political. 

His  saltern  accumulem  donis  et  fungar  inani 
Munere 

is  a  perfect  expression  of  the  two  sentiments  which  his  death 
rouses — the  moral  impossibility  of  keeping  silence  on  the 
occasion,  and  the  emptiness  of  all  that  can  be  said.  The 
biographical  part  of  the  article  in  the  "  Times  "  supersedes  the 
necessity  for  any  narrative  of  the  events  of  Sir  Henry  Maine's 
life,  but  it  leaves  something  to  be  said  on  his  character. 

'  The  whole  colour  of  his  career,  the  nature  of  his  successive 
undertakings,  and  the  way  in  which  he  carried  them  out, 
depended  upon  his  physical  constitution.  The  writer  in  the 
"  Times  "  correctly  states  his  physical  advantages  as  a  lecturer. 
He  had  a  striking  face,  a  remarkably  powerful  voice,  and  a 
rather  tall  and  well-proportioned  figure  ;  but  he  was  from 
boyhood  essentially  delicate,  and  he  overtaxed  such  strength 
as  he  had  at  the  beginning  of  his  career.  Till  he  was  forty 
years  old  he  hovered  on  the  verge  of  being  an  invalid,  and 
had  several  most  trying  and  tedious  illnesses.  He  was  forced 
by  one  of  them  to  refuse  the  first  offer  made  to  him  of  the 
office  of  Legal  Member  of  Council  in  India,  and  it  was  only  the 
accident  of  Mr.  Ritchie's  death,  after  holding  the  office  for  six 
months,  that  enabled  the  country  to  obtain  Sir  Henry's  services. 
The  Indian  climate  suited  him,  and  he  returned  to  England  a 
healthier  man  than  he  left  it,  but  he  was  never  robust.  He 
suffered  of  late  years  from  various  ailments,  which  gave  his 
friends  much  uneasiness  ;  and  his  death  was  preceded  by 
many  months  of  ill  health  of  a  distressing  kind. 

'  One  effect  of  this  was  that  he  never,  after  he  took  his 


8o  MEMOIR   OF    SIR    HENRY    MAINE 

degree,  was  physically  capable  of  severe  continuous  drudgery. 
In  no  one  of  the  three  professions  which  he  followed,  and  in 
each  of  which  he  excelled  nearly  all  his  competitors,  did  he  go 
through  the  elaborate  processes  of  detail  which  in  nearly  every 
case  are  requisite  to  success.  He  was  not  one  of  the  journalists 
who  can  sit  in  court  pleading  cases  all  day  and  write  articles 
all  nigfht.  He  was  not  one  of  the  Indian  administrators  who 
are  as  much  at  home  in  the  saddle  as  at  the  desk.  No  man 
of  our  time  did  so  much  for  the  revival  of  the  study  of  Roman 
Law  ;  but  it  is  greatly  to  be  doubted  whether  he  had  any 
special  familiarity  with  the  Pandects  or  the  Code.  Sir  Henry 
Maine's  great  peculiarity,  his  unique  distinction,  was  that,  by 
extraordinary  care  and  skill  in  the  use  of  mental  gifts  equally 
extraordinary,  he  was  able  to  pursue  with  triumphant  success 
three  several  professions  of  the  most  arduous  kind,  without  the 
assistance  which  great  physical  strength  and  energy  would 
have  given  him,  and  without  treading  in  the  routine  to  which 
each  of  them,  as  a  rule,  confines  those  who  follow  it  successfully. 
The  most  obvious  of  these  qualities  were  an  almost  preter- 
natural quickness  of  understanding  and  facility  of  expression. 
Sir  Henry  Maine  could  read  a  thick  volume,  and  that  in  such 
a  way  as  to  appropriate  what  concerned  him  in  it,  whilst  an 
ordinary  man  read  a  hundred  pages.  One  would  have  said 
that  his  brain  and  nerves  were  on  the  very  verge  of  morbid 
excitability  if  his  temper  had  not  been  remarkably  sweet, 
gentle,  and  even  patient.  His  quickness  showed  itself  as  much 
in  his  power  of  applying,  as  in  his  power  of  grasping,  principles, 
and  as  much  in  expression  as  in  conception.  These  qualities 
were  invaluable  to  him  as  a  journalist.  They  enabled  him, 
whatever  might  be  the  subject  on  which  he  wrote,  to  see  at 
once  with  intuitive  quickness  exactly  what  he  had  to  say,  and 
to  say  it  in  language  almost  mathematically  accurate. 

'  These  qualities  were  remarkable  enough  to  secure  a  con- 
siderable success  in  life.  But  in  him  they  were  combined  with 
others  rarer  and  more  remarkable— qualities  for  which  journal- 
ism gives  comparatively  little  scope,  but  which  are  essential  to 
the  more  permanent  forms  of  literature.  These  Sir  Henry 
Maine  possessed  in  the  highest  degree,  and  employed  upon  a 
branch  of  knowledge  which  he  may  almost  be  said  to  have  called 


THE   '  SATURDAY    REVIEW  '  8 1 

into  existence,  at  least  in  this  country.  As  a  lecturer  and  as  an 
author  on  subjects  connected  with  the  origin  of  laws  and  the 
history  of  the  early  forms  of  political  institutions  he  was  as 
successful  as  he  was  in  journalism.  His  powers  as  a  lecturer 
were  remarkable  ;  but  of  course  his,  like  all  other  lectures 
carefully  prepared  beforehand,  and  not  illustrated  by  experi- 
ments, were  open  to  the  remark  that,  when  all  was  said  and 
done,  they  were  like — and  indeed,  actually  were  to  a  great 
extent — chapters  of  a  book  read  aloud.  Their  importance  is 
shown  in  the  books  which  give  their  results  in  a  condensed 
form.  This  is  not  the  place  for  the  discussion  of  their 
contents  ;  but  it  may  be  said  in  general  that  their  great  dis- 
tinguishing characteristic  is  that  they  were  written  as  if  by 
inspiration.  Their  author  had  a  power  of  seeing  the  general 
in  the  particular  which  we  do  not  think  has  been  equalled  in 
literary  history.  His  works  are  full  of  generalisations  which 
are  as  remarkable  for  their  clearness  and  sobriety  as  for  their 
intrinsic  probability,  and  which  were  reached,  not  by  any 
very  elaborate  study  of  detailed  evidence,  but  by  a  kind  of 
intuition.  He  seemed  to  see  things  "  in  their  quiddity,"  and 
to  reconstitute  them  from  fragments  with  the  genius  of  Owen 
or  Cuvier.  In  his  "  Asiatic  Studies  "  Sir  Alfred  Lyall  gives 
striking  instances  of  this  from  his  speculations  on  the  origin  of 
clans.  Sir  Alfred  found  in  Rajputana  the  precise  practices 
which  Sir  Henry  Maine  had  suggested  as  a  possible  expla- 
nation of  some  scattered  facts  which  he  had  noticed  in  his 
reading. 

This  quickness  of  apprehension,  power  of  expression,  and 
luminous  intuition  would  perhaps  lead  an  uninformed  observer 
to  the  conclusion  that  their  possessor  had  the  temperament  of 
a  poetical  enthusiast.  No  greater  mistake  could  have  been 
made.  They  were  associated  with  a  temperament  which  was 
liable  to  err  on  the  side  of  caution,  regard  to  actual  circum- 
stances, and  to  immediate  practical  consequences,  and  a  total 
absence  of  any  sort  of  enthusiasm  or  illusion.  In  his  third 
profession,  that  of  a  statesman,  these  qualities  were  conspi- 
cuously displayed.  Sir  Henry  Maine  never  made  a  mistake 
in  his  duties  as  an  adviser  of  the  Government  of  India.  He 
was  wise,  calm,  cautious,  and  reasonable  to  a  degree  of  which 

G 


82  MEMOIR   OF   SIR   HENRY   MAINE 

it  is  difficult  to  give  any  adequate  notion.  He  was  sometimes 
charged  with  idleness  in  India,  and  it  is  no  wonder  that  the 
charge  was  made  in  a  country  where  the  standard  of  industry 
is  so  high  as  to  be  apt  to  demand  unremitting  drudgery,  and 
where  more  valuable  and  rarer  qualities  are  apt  to  be  regarded 
with  cynical  suspicion  and  ignorant  contempt.  Sir  Henry 
Maine  undoubtedly  did  not  work  so  hard  as  many  of  his 
colleagues  ;  but  there  was  probably  not  one  of  them  who  could 
have  done  at  all  what  he,  whenever  called  upon,  did  supremely 
well. 

'  It  is  difficult  to  speak  of  his  moral  and  personal  qualities. 
He  was  not  a  man  of  wide  popular  sympathies,  nor  was  he 
ever  called  upon  to  enter  into  any  of  the  conflicts  which 
attract  much  public  attention  ;  but  to  the  few  who  knew  him 
really  well  he  endeared  himself  to  an  extent  which  it  is  im- 
possible to  describe  without  entering  upon  matters  with 
which  the  public  has  no  concern.  There  are  persons  to  whom 
the  world  can  never  have  the  same  aspect  again  as  it  had  when 
he  lived  in  it' 

I  can  add  nothing  to  this,  which  contains,  indeed,  all  that 
it  is  really  important  to  know  of  Maine  outside  his  writings, 
into  which  he  put  the  expressed  essence  of  himself  These, 
however,  may  be  read  with  more  interest  by  persons  who, 
assisted  by  such  a  clue  as  I  am  attempting  to  furnish,  can  fit 
them  into  the  various  periods  of  his  activity  from,  his  academic 
preludings,  through  his  professorial  and  journalistic  beginnings, 
to  his  career  as  a  jurist,  statesman,  and  publicist.  His  life 
was  a  drama  in  five  acts,  Cambridge,  London,  India,  London 
and  Oxford,  London  and  Cambridge  ;  but  it  was  a  drama 
with  no  exciting  scenes  or  startling  incidents.  The  one 
circumstance  in  it  of  an  unusual  character  was  that  a  man  of 
such  fine  and  peculiar  powers,  one  so  unlike  the  ordinary 
successful  lawyer,  should  have  early  attracted  the  attention 
of  a  Minister  able  to  place  him  at  once  in  a  high  position. 
That  piece  of  good  fortune  fell  to  Lord  Halifax,  advised 
perhaps    by    Herman    Merivale — a    personage    of   rare    and 


CONCLUSION  83 

brilliant  abilit}',  who  died  almost  unknown  to  his  countrymen, 
but  who  was  a  great  power,  first  in  Colonial,  and  then  in  Indian, 
affairs  for  many  years  of  this  century.  However  that  may 
be,  the  excellent  man  and  able  administrator  who  was  then 
Secretary  of  State  for  India,  and  was  responsible  for  the  ap- 
pointment, never  did  a  better  day's  work  than  when  he  sent  to 
India  a  Member  of  Council  so  fitted  to  bring  to  the  government 
ofthatcountryjust  the  kind  of  insight  which  the  Indian  services, 
filled  as  they  are  with  men  of  ability — how  filled  no  one  knows 
till  he  has  had  to  work  with  them — have  so  seldom  been  able 
to  supply.  The  slow  irresistible  pressure  of  Law  is  the 
strongest  British  influence  now  working  in  India,  and  Maine, 
from  1862  to  his  death,  had  more  to  do  than  any  other  single 
man,  I  will  not  say  with  making  Indian  law,  but  with  deter- 
mining what  Indian  law  should  be.  That  and  the  new  spirit 
which  he  breathed  into  juridical  studies  in  England,  and  to 
some  extent  in  other  countries  of  the  West,  are  his  chief  titles 
to  the  remembrance  of  posterity.  His  published  works  are 
in  the  hands  of  all  who  care  for  the  studies  which  he  cultivated, 
and  the  remainder  of  this  volume  will  be  devoted  to  giving 
some  idea  of  the  nature  and  extent  of  his  work  during  the 
years  when  he  acted  directly  upon  Indian  legislation  and 
government,  at  Calcutta  and  Simla. 


SPEECHES 


The  following  speeches  are  taken  from  the  seven  volumes  of  '  Pro- 
ceedings of  the  Council  of  the  Governor  General  of  India  assembled 
for  the  Purpose  of  Making  Laws  and  Regulations/  published  by  the 
authority  of  the  Governor  General,  at  Calcutta,  in  the  years  1863 
to  1869.  Most  of  them  were  reported,  by  Mr.  Maine's  desire,  in  the 
oratio  obliqiia  ;  but  a  few,  of  exceptional  importance,  are  given 
exactly  as  they  were  delivered.  All  were  revised  by  Mr.  Maine  in 
proof.  They  are  arranged  chronologically,  except  in  one  or  two  cases 
where  it  seemed  desirable  to  bring  together  speeches  dealing  with 
the  same  or  a  similar  subject.  For  a  like  reason,  a  minute  on  specific 
performance  of  contracts  comes  immediately  after  a  speech  on  the 
same  matter,  and  a  speech  and  a  minute  on  over-legislation  have  been 
placed  together. 

BREACHES   OF  CONTRACT  COMMITTED  IN 
BAD  FAITH 

December  17,  1862. 

The  Natives  of  India,  like  some  European  races,  have  two  standards 
of  morality,  one  used  among  themselves,  the  other  between  themselves 
and  foreigners.  The  former  standard  is  fairly  high,  witness  the  rarity 
of  a  dishonoured  hundi.'  The  latter  is  decidedly  low,  and  one  of  the 
many  difficulties  with  which  the  Indian  legislature  has  had  to  cope 
arises  from  the  tendency  of  Natives  to  break  their  contracts  with 
Europeans  after  having  received  payments  in  advance  or  other  con- 
sideration. The  ordinary  civil  remedy  by  the  award  of  damages  is 
in  most  of  these  cases  utterly  useless.  In  1859,  therefore,  an  Act 
was  passed  to  provide  for  the  punishment  of  such  fraudulent  breaches 
by  imprisonment  ;  but  it  applied  only  to  artificers,  workmen,  and 
labourers,  and  its  local  extent  was  limited.  In  1861  Mr.  (afterwards 
Sir  Cecil)  Beadon  brought  in  a  Bill  with  a  similar  object,  but  it 
applied  only  to  agricultural  contracts,  as,  for  example,  when  a  ryot 

'  A  kind  of  bill  of  exchange  used  by  Native  bankers  and  merchants. 


86  SPEECHES   OF   SIR   HENRY    MAINE 

agreed  with  the  owner  of  an  indigo  factory  to  plant  land  with  indigo, 
and  received  an  advance  to  enable  him  to  do  so.  This  Bill  was, 
moreover,  withdrawn  at  the  instance  of  the  Secretary  of  State,  mainly 
on  the  ground  that  '  it  dealt  with  breaches  of  a  civil  contract  in  a 
criminal  way.'  In  the  following  year  Mr.  W.  Ritchie,  Sir  Henry 
Maine's  predecessor  as  Law  Member  of  the  Governor  General's 
Council,  introduced  a  Bill  providing  that  when  any  defendant  had 
received  consideration  for  any  contract  and  broken  it,  the  Court,  if  it 
found  that  the  contract  had  been  broken  in  bad  faith  and  without 
reasonable  excuse,  and  if  the  damages  were  not  paid,  might  commit 
him  for  a  certain  period  to  gaol,  where  he  should  maintain  himself  or 
be  kept  to  hard  labour.  This  measure  had  the  approval  of  the  late 
Sir  Barnes  Peacock.  However,  Sir  Chades  Wood,  then  Secretary  of 
State  for  India,  sent  out  a  despatch  to  the  Government  of  India  ex- 
pressing a  hope  that  the  Bill  would  be  withdrawn,  and  intimating  a 
doubt  as  to  the  expediency  of  any  legislative  interference  in  com- 
mercial transactions  with  the  view  of  coercing  one  of  the  parties  to 
a  contract.  The  select  committee  to  which  Mr.  Ritchie's  Bill  was 
referred  recommended  that  it  should  be  dropped.  The  first  impor- 
tant duty  which  Mr.  Maine  had  to  perform  as  Law  Member  was  to 
support  their  recommendation.    This  he  did  in  the  following  speech  : 

The  Honourable  Mr.  Maine  moved  that  the  report  of  the 
select  committee  on  the  Bill  relating  to  breaches  of  con- 
tract committed  in  bad  faith  be  taken  into  consideration.  In 
making  this  motion,  he  begged  to  offer  a  few  words  on  the 
reasons  which  had  led  the  committee  to  the  conclusions  of  the 
report ;  or,  rather,  he  should  perhaps  say,  on  the  reasons 
which  had  led  himself;  for  it  was  possible,  and  indeed  pro- 
bable, that  different  members  had  reached  the  same  conclu- 
sions by  different  routes.  It  would  be  seen  that,  in  the 
despatch  from  the  Secretary  of  State  for  India  which  was 
printed  with  the  papers  accompanying  the  Bill,  the  Secretary 
of  State  expressed  a  hope  that  the  Bill  would  be  withdrawn, 
and  then  intimated  a  doubt  whether  any  legislative  interfer- 
ence in  commercial  transactions,  with  the  view  of  coercing  one 
of  the  parties  to  a  contract,  could  be  productive  of  good. 
The  language  of  the  Secretary  of  State  was  not  directly  im- 
perative, and,  on  the  whole,  for  various  reasons,  the  committee 
thought  it  their  duty  to  consider  the  possibility  of  amending  the 
Bill,  and  if  he  (Mr.  Maine)  individually  might  avow  any  other 
motive  besides  the  wish  that  a  subject  of  such  great  importance 


FRAUDULENT  BREACHES  OF  CONTRACT         87 

should  meet  with  full  discussion,  it  would  be  the  desire  that 
no  measure  introduced  by  the  late  Mr.  Ritchie  should  be 
lightly  thrown  aside. 

It  would  be  better  first  to  consider  the  Bill  apart  from 
the  objections  of  the  Secretary  of  State.  The  Council  would 
remember  that  Mr.  Ritchie  introduced  it  avowedly  as  a 
measure  of  compromise.  Mr.  Maine  inferred,  from  the  lan- 
guage which  Mr.  Ritchie  used  in  the  debate  on  its  introduc- 
tion, that  he  would  have  preferred  a  Bill  like  that  brought 
in  by  the  present  Lieutenant  Governor  of  Bengal,  a  measure, 
that  was  to  say,  making  breaches  of  contract  criminally 
punishable,  but  more  general  than  Mr.  Beadon's  Bill,  which 
applied  only  to  contracts  for  the  delivery  of  agricultural  pro- 
duce. The  Secretary  of  State,  as  was  well  known,  announced 
his  intention  of  disallowing  the  first  Breach  of  Contract  Bill, 
and  hence  Mr.  Ritchie  was  compelled  to  confine  himself  to  a 
Bill  prescribing  a  proceeding  of  a  civil  nature  in  point  of  form, 
but  of  a  criminal  nature  in  respect  of  the  penal  consequences 
incurred  by  an  unsuccessful  defendant.  Mr.  Maine  thought, 
however,  it  would  always  be  found  that,  when  you  were  dealing 
with  a  distinction  so  old  and  so  universal  as  that  which 
separated  criminal  law  from  civil,  it  was  not  possible  to  mix 
together  the  provinces  of  jurisprudence  which  lay  on  either  side 
of  the  boundary,  and  that  you  would  be  obliged  to  take  up  a 
position  on  one  side  of  the  line  or  the  other.  It  was  his  strong 
impression  that,  if  the  committee  had  felt  there  was  any  use 
in  amending  the  Bill,  it  would  have  emerged  in  a  shape 
closely  resembling  that  of  the  measure  introduced  by  the 
Lieutenant  Governor  ;  for,  when  they  came  to  the  examina- 
tion of  details,  and  attempted  to  put  the  machinery  of  Mr. 
Ritchie's  Bill  into  working  order,  they  would  have  found  it 
defective  in  one  respect,  in  the  omission  of  provisions  for 
sufficiently  full  notice  to  the  defendant  of  the  character  of  the 
charge  brought  against  him.  It  w^ould  have  been  contrary  to 
all  principle— and,  as  it  struck  him,  to  one's  most  elementary 
instincts  of  justice — to  inflict  a  penalty  so  severe  as  hard  labour 
on  a  man  who  had  not  been  amply  warned  before  the  trial  com- 
menced that  he  would  be  exposed  to  this  consequence  if  he  did 
not  succeed  in  rebutting  the  accusation  of  fraud.    No  civilised 


55  SPEECHES   OF   SIR    HENRY   MAINE 

nation,  so  far  as  he  was  aware,  had  ever  relieved  an  accuser 
from  the  duty  of  giving  this  warning.  A  French  act  of  accu- 
sation was  a  vokiminous  history,  not  only  of  the  alleged 
offence,  but  almost  of  the  whole  life  of  the  accused,  and,  in 
England,  until  comparatively  recently,  the  law  was  so  anxious 
that  prisoners  should  come  into  court  with  full  preparation, 
that  a  large  percentage  of  persons  accused  escaped  scot-free  for 
want  of  a  precise  description  of  the  charge  in  the  indictment. 

The  committee,  therefore,  if  it  had  amended  the  Bill,  had 
two  courses  open  to  it.  Either  it  must  have  compelled  the 
plaintiff,  in  such  a  proceeding  as  the  Bill  contemplated,  to 
put  into  the  pleadings  a  full  account,  with  all  particulars  of 
mode  and  time,  of  the  fraud  with  which  he  taxed  the  defen- 
dant, or  else  it  must  have  been  provided  that,  whenever  in  the 
course  of  a  civil  suit  for  breach  of  contract  it  became  clear 
that  the  question  of  fraud  would  be  raised,  the  proceedings 
should  at  once  be  interrupted,  and  the  accused  bidden  to 
attend  on  a  subsequent  day,  with  his  means  of  disproof,  if  he 
had  any.  In  the  first  case,  the  inquiry  would  differ  only  in 
name  from  a  criminal  trial  ;  in  the  second,  it  would  be  a 
criminal  investigation  added  on  to  a  civil  suit. 

He  had  attempted  to  show  that  legislation  on  that  subject 
would  necessarily,  in  the  long  run,  turn  out  to  be  criminal  legis- 
lation, because  it  explained  the  stress  laid  by  the  committee  on 
the  passage  in  the  despatch  in  which  the  Secretary  of  State 
objected  to  any  inquiry  into  the  motives  of  the  defendant,  and 
into  the  reasonableness  or  otherwise  of  his  excuses  for  non- 
performance. It  was  scarcely  necessary  to  point  out  to  the 
Council  that  such  an  inquiry  was,  in  fact,  the  great  character- 
istic which  distinguished  the  administration  of  criminal  law 
from  the  administration  of  civil  law.  In  the  assessment  of 
civil  penalties,  no  excuse  could  be  listened  to  ;  if  the  suit  were 
for  breach  of  contract,  the  only  question  was,  whether  the 
contract  had  been  performed  :  if  it  had  not  been  performed, 
though  even  through  the  most  unmerited  misfortune,  the  full 
consequences  of  non-performance  must  follow  without  abate- 
ment. But,  under  criminal  law,  whether  an  act  drew  down  a 
penalty  at  all  depended  entirely  on  the  motive  with  which  it 
had  been  done  ;  and  he  ventured  to  say  that  there  was  not 


FRAUDULENT  BREACHES  OF  CONTRACT       89 

one  act  of  which  criminal  law  took  cognizance  which,  if  the 
motives  of  the  actor  shaped  themselves  in  a  particular  way,  or 
lent  themselves  to  a  particular  excuse,  might  not  become 
justifiable  and  even  laudable.  For  these  reasons  the  Council 
would  not,  he  thought,  fail  to  come  to  the  conclusion  that, 
when  the  Secretary  of  State  objected  to  an  inquiry  into 
motives,  he  objected  not  only  to  Mr.  Ritchie's  Bill  in  its  pre- 
sent shape,  but  in  any  shape  it  could  possibly  assume. 

Then  came  the  question,  how  far  beyond  this  did  the  ob- 
jections of  the  Secretary  of  State  extend.  He  understood  the 
Secretary  of  State  to  object  to  all  general  criminal  legislation 
against  breaches  of  contract.  But  comparing  the  language 
of  this  despatch  with  that  of  former  despatches  on  the  same 
subject,  he  did  not  understand  him  to  object  to  particular 
legislation.  He  meant  by  particular  legislation,  legislation 
directed  to  the  enforcement,  by  the  authority  of  the  magis- 
trate, of  a  certain  class  of  contracts,  or  of  contracts  between 
persons  belonging  to  a  particular  class.  There  were,  he 
believed,  samples  of  such  legislation  in  the  jurisprudence  of 
every  country.  In  England  there  was  the  statute,  or  rather 
the  series  of  statutes,  regulating  the  relations  between 
employers  and  labourers,  and  the  statute  which  applied  to 
merchant  seamen.  In  India  they  had  the  Calcutta  Artificers' 
Act,'  and  there  had  been  many  laws  and  regulations  of  that 
kind  which  had  expired  or  had  been  repealed.  In  all  this  legis- 
lation, there  seemed  to  be  little  question  of  motive.  Breaches 
of  contract  by  persons  falling  under  these  statutes  did  not 
appear  to  be  criminally  punished  on  account  of  their  peculiar 
immorality,  for  it  would  be  absurd  to  maintain  that  a  breach 
of  contract  by  a  mariner  is  more  immoral  than  by  anybody 
else  ;  but,  as  Mr.  Maine  supposed,  the  legislator  took  his  stand 
on  the  interests  of  society,  and  declared  that  society  could  not 
afford  to  allow  these  particular  contracts  to  be  lightly  broken. 
Of  course,  such  legislation  must  always  be  sparingly  resorted 
to,  and  only  on  the  clearest  grounds  ;  both  because  it  was 
exceptional,  and  because  it  rested  on  a  ground  (the  interest  of 
society)  which  had  always  furnished  the  greatest  number  of 
pretexts  for  tyranny.     But  still,  in  spite  of  all  its  disadvan- 

'  Act  XIII.  of  1859. 


90  SPEECHES   OF   SIR   HENRY   MAINE 

tages,  he  confessed  that  he  infinitely  preferred  particular  to 
general   legislation    on    these    subjects.     Of   course,    general 
legislation  had  advantages  of  its  own.      If  you  wish  to  conceal 
your  true  object,  you  can  do  it  much  more  easily  by  general 
legislation  than  by  particular  legislation.    If  you  wish  to  avail 
yourself  of  broad    general    propositions  about    the    duty  of 
punishing  fraud,  wherever  it  may  be  detected — propositions 
which   it   was  extremely   invidious  to  deny,  and   extremely 
dangerous  to  affirm — you  can  call  them  to  your  aid  much  more 
effectually  when  you  are  meditating  general  legislation.     But 
in  particular  legislation  you  have  this  compensating  advan- 
tage, that    you    know    where    you    are  going  to.     You    can 
measure  the  consequences  of  the  steps  you  take,  and  you  can 
retrace  them  if  they  disappoint  you.      If  he  felt  himself  called 
upon,  which  he  did  not,  to  raise  objections  to  Mr.   Ritchie's 
attempt  at  general  legislation,  he  should  rest  his  doubts  less 
on  the  grounds  urged   by  the   Secretary   of  State,  than  on 
grounds  which  it  was  not  easy  to  describe  in  precise  language. 
He  should    deprecate    such    legislation    less    on    account    of 
results  he  foresaw,  than  on  account  of  results  which  he  did  not 
and  could  not  foresee.     Knowing,  as  they  all  did,  that  all  the 
modern  progress  of  society  seemed  to  be  intimately  connected 
with  the  completest  freedom  of  contract,  and  in  some  way 
almost  mysteriously  dependent  on  it,  he  should  shrink  from 
tampering  with  so    powerful    an  instrument    of  civilisation  ; 
and  if  he  were  unfortunately  compelled  to  propose  a  measure 
like  Mr.  Ritchie's,  he  should  feel  like  a  physician  employing  a 
remedy  which  might  indeed  cure  the  disease,  but  which  might 
also    revolutionise    the    constitution.       There    were    no    such 
dangers  as  these  attending  particular  legislation.      In  that,  as 
you  must  always  be  aware  that  the  measures  you  contemplate 
are  irregular  and  exceptional,  you  are  likely  to  assure  your- 
self before  you  interfere,  that  a  case  has  been  established  for 
interference.     When  you  do  make  up  your  mind  to  use  your 
remedy,  you  can  exactly  proportion  it  to  the  evil  which  has  to 
be  removed  :  and  as  the  sphere  of  its  operations  would  probably 
be  limited,  you  can  judge  and  observe  of  its  working.     It  was 
not  for  him  to  say  what  legislation  of  the  kind  he  had  been 
describing  was  called  for  by  the  circumstances  of  particular 


DIVORCE  91 

localities  in  India,  or  by  the  practices  and  habits  of  particular 
classes  ;  but  if  exceptional  measures  had  to  be  resorted  to, 
and  they  were  of  that  nature,  he  should  think  that  they  could 
secure  what,  no  doubt,  was  one  of  the  most  efficient  means  of 
moral  education — the  exact  performance  of  contracts — with- 
out disturbing  principles  and  distinctions  which  had  been 
established  for  so  man}-  centuries,  and  which  seemed  to  strike 
root  the  deeper  as  the  world  grew  older. 

DIVORCE 

December  24,  1862  :  January  14,  1863  :  February  26,  1869. 

The  next  three  speeches  relate  to  a  Bill,  framed  by  Mr.  Whitley  Stokes, 
the  object  of  which  was  to  confer  upon  the  High  Courts  in  India  a  juris- 
diction similar  to  that  exercised  by  the  Divorce  Court  sitting  in 
London.  The  Bill  was  passed  as  Act  IV.  of  1869,  to  amend  the  laiv 
relating  to  divorce  and  matrimonial  causes  in  India.  It  extends  to 
India  the  principal  provisions  of  20  &  21  Vic.  c.  85,  as  amended  by 
22  &  23  Vic.  c.  61,  23  &  24  Vic.  c.  144,  and  29  Vic.  c.  32.  It  also 
embodies  many  rulings  of  Sir  Cresswell  Cresswell  and  Lord  Penzance. 

Mr.  Maine  moved  for  leave  to  introduce  a  Bill  for  con- 
ferring upon  the  High  Courts  of  Judicature  in  India  the 
jurisdiction  and  powers  vested  in  the  Court  for  Divorce 
and  Matrimonial  Causes  in  England.  He  said  that  the  object 
of  the  Bill  was  to  give  effect  to  the  policy  embodied  in 
the  High  Courts  Act  passed  in  1861,'  and  to  the  Letters 
Patent  issued  by  Her  Majesty  for  constituting  the  High 
Courts.  The  object  of  the  High  Courts  Act  seemed  to  have 
been,  not  so  much  to  create  new  branches  of  jurisdiction,  as  to 
constitute  and  re-distribute  the  power  which  already  existed. 
The  9th  clause  gave  power  to  Her  Majesty  to  confer  on  the 
High  Courts  such  matrimonial  jurisdiction  as  she  thought  fit  ; 
but  following  the  principle  he  had  mentioned,  Her  Majesty 
did  not  attempt  to  confer  on  the  High  Court  such  a  jurisdic- 
tion as  was  exercised  by  the  Divorce  Court  in  England.  The 
Secretary  of  State  therefore  requested  the  Governor  General 
to  introduce  a  measure,  conferring  a  jurisdiction  on  the  High 
Courts  here  similar  to  that  exercised  by  the  Divorce  Court 
sitting  in  London. 

'  24  &  25  Vic.  c.  104. 


92  SPEECHES   OF   SIR   HENRY   MAINE 

The  course  pursued  was  probably  the  only  one  which 
could  have  been  followed  under  the  circumstances.  But  it 
had  given  rise  to  a  peculiar  difficulty,  which  had  been  the 
cause  of  some  delay  in  introducing  this  Bill.  The  matter 
was  so  delicate  and  important,  that  even  before  the  text  of  the 
Bill  was  in  the  hands  of  the  members,  he  would  state  what 
that  difficulty  was.  He  need  not  say  that,  before  such  a  Bill 
as  this  was  brought  in,  deeply  concerning  the  High  Court  of 
Bengal,  it  was  submitted  to  the  judges  of  that  tribunal.  The 
Government  were  in  possession  of  their  answers,  and  two  of 
the  judges  of  the  High  Court  had  given  specific  opinions 
on  the  point  to  which  he  had  referred.  They  called 
attention  to  its  being  doubtful  whether,  if  the  High  Court, 
acting  under  the  authority  conferred  by  the  Council,  decreed 
the  dissolution  of  marriage  between  persons  belonging  to  a 
certain  class  of  Her  Majesty's  subjects  in  India,  there  was 
anything  in  the  present  state  of  the  law  which  would  compel 
the  English  courts  to  recognise  those  decrees,  and  to  view  the 
marriages  put  an  end  to  as  legally  dissolved.  One  learned 
judge  (Mr.  Justice  Norman)  was  on  the  whole  of  opinion, 
that  a  decree  of  the  High  Court  dissolving  a  marriage  would 
now  be  recognised  in  England.  The  Chief  Justice,'  however, 
considered  it  more  than  doubtful  whether  such  decrees  would 
be  allowed  by  the  English  courts  to  have  this  consequence  ; 
and  though  no  concurrence  of  his  (Mr.  Maine's)  could  add 
weight  to  the  opinion  of  Sir  Barnes  Peacock  on  this  point,  he 
must  say  that  ever  since  he  had  tried  to  address  himself  to 
this  subject  he  had  been  struck- with  the  same  difficulty. 

He  would  attempt  to  explain  what  this  difficulty  was.  There 
was  no  doubt  that  the  rule  of  private  international  law,  the 
rule  received  among  communities  under  what  was  called  the 
comity  of  nations,  was  that  every  man's  status,  his  personal 
condition,  was  to  be  determined  by  the  law  of  his  domicile,  of 
the  country  in  which  he  was  domiciled  ;  so  that  a  man  who 
was  a  major  or  minor,  or  bachelor  or  divorced  man,  in  the 
place  where  he  had  acquired  a  domicile  was  a  major  or 
minor,  and  so  forth,  in  every  other  country.  Of  course  the 
highest  authority  by  which  a  man's  status  could  be  declared 
'  The  late  Sir  Barnes  Peacock. 


DIVORCE  95 

in  any  country  was  the  authority  of  a   court  of  competent 
jurisdiction,   and    hence  it  followed   that  all    tribunals   were 
bound  by  the  comity  of  nations  to  respect  and  recognise  the 
decrees  of  divorce  passed  by  foreign  courts.     Now,  then,  as 
the  courts  of  every  dependency  of  the  British  Crown,  which 
had  a  complete  and  independent  judicial  system,  are  foreign 
courts  relatively  to  the  English  tribunals,  it  would  seem  that 
a  decree   of  the    High  Court  dissolving  a  marriage   between 
domiciled  Christians  under  the  measure  now  to  be  introduced 
ought  to  be  deemed  effectual  by  every  English  tribunal ;  and 
that  such  a  decree  would  be  regarded  as  valid  in  respect  of 
one  class  of  Indian  Christians  there  seemed  to  be  no  doubt. 
When  persons  had  been  married  in   India,  and  the  marriage 
had  been  dissolved  by  the  High  Court,  no  difficulty  existed, 
and   the  dissolution  would  be  held  to  be  complete  even  in 
England.     But  when  persons  had  been  married  in  England, 
and  their  marriage  had   been  dissolved    in   India,  it  was  far 
from  certain  that  English  tribunals  would  consider  them  at 
liberty  to  re-marry.    The  doubt  had  been  caused  by  a  judicial 
decision  which  had  become  memorable  in  that  branch  of  juris- 
prudence, and  which  was  known'  as  TJie  King  ^against  Lolley, 
or  Lelly's  case.'      Lolley,  in   1812,  was  indicted  for  bigamy, 
and  he  pleaded  in  defence  that  his  first  marriage  was  dis- 
solved by  a  Scotch  decree.     All  the  twelve  English  judges 
held  that  such  a  dissolution  was  of  no  validity  in  England  ; 
and  Lolley,  who  had  been  convicted,  underwent  the  punish- 
ment to  which  he  had  been  sentenced.     The  decision  was,  as 
he  had  heard,  consonant  with  the  prevalent  feeling  of  the 
time,  for  much  anxiety  had  been  caused   by  the  apparent 
facility  with  which  divorces  were  obtained  from  the  consis- 
torial  branch  of  the  Scottish  Court  of  Session  ;  but  at  the  same 
time  it  was  in  flagrant  discordance  with  the  rule  of  private 
international  law.     Hence,  a  long  succession  of  the  best  legal 
authorities  had  expressed  dissatisfaction  with  Lolley 's  case,-  or 
had  attempted  to  explain  it  away.     Some,  with  whom   Mr. 
Justice  Norman  was  disposed  to  agree,  had  pointed  out  that 

'   I    Dow,  124,  136;  Russ.    &  Ry.        Commentaries,    12th  ed.,  vol.    ii. ,  pp. 
C.  C.  236.  no,  III,  117. 

•^  See  in  the  United  States,  Kent's 


94  SPEECHES   OF   SIR   HENRY   MAINE 

the  decision  turned  partly  on  the  circumstance  that  mar- 
riages at  common  law  in  1812  were  incapable  of  dissolution  ; 
so  that,  the  law  being  now  otherwise,  the  case  had  lost  its 
authority.  Others,  including  the  judge  of  greatest  experience 
in  matrimonial  law,  Dr.  Lushington,  had  observed  that  the 
judges  in  1812  did  not  seem  to  have  paid  attention  to  the 
question  of  domicile.  But  on  the  whole,  he  ventured  to  think 
that  the  better  opinion  was  Sir  Barnes  Peacock's,  who  con- 
sidered that,  so  long  as  Lolley's  case  was  not  formally  over- 
ruled, it  was  impossible  to  say  that  persons  married  in  Eng- 
land and  divorced  in  India  would  be  regarded  in  England  as 
capable  of  contracting  a  legitimate  re-marriage. 

This  case,  too,  as  the  Council  would  see,  was  one  in  which 
doubt  was  almost  as  intolerable  as  unfavourable  certainty  ;  for 
doubts  as  to  the  validity  of  divorces  were  doubts  as  to  the 
lawfulness  of  re-marriage  ;  doubts  as  to  the  lawfulness  of  re- 
marriages were  doubts  as  to  the  legitimacy  of  children  ;  and 
doubts  as  to  the  legitimacy  of  children  were  doubts  as  to  the 
right  of  inheritance  ;  so  that  these  difficulties,  if  not  set  at 
rest,  might  lie  in  ambush  for  the  third  and  fourth  generation, 
and  fifty  or  sixty  years  hence  the  right  to  an  estate  might 
be  impeached  on  account  of  an  unsettled  question  respect- 
ing an  Indian  divorce. 

The  question  therefore  was,  what  course  ought  they  to 
adopt  in  legislating  on  these  subjects.  There  could  be  no 
doubt  that,  as  they  were  competent  to  legislate  for  a  large 
class  of  Christian  subjects,  those  who  had  been  married  in 
India,  they  should  not  delay  the  relief  they  could  give  to 
such  of  them  as  were  unfortunate  enough  to  be  compelled 
to  resort  to  the  new  branch  of  the  High  Court.  Mean- 
time, the  Governor  General  in  Council  had  requested  the 
Secretary  of  State  to  lay  the  difficulty  before  the  law-officers 
of  the  Crown.  If  they,  considering  the  criticisms  which  had 
been  directed  against  Lolley's  case  by  so  many  learned  persons, 
were  of  opinion  that  it  was  originally  decided  erroneously, 
there  would  be  reasonable  security  for  persons  married  in 
England  who  might  re-marry  after  a  decree  of  divorce  by 
the  Hi""h  Court.  If  they  thought  that  Lolley's  case  still  stood 
in  the  way,  the  Secretary  of  State  would  doubtless  think  fit 


DIVORCE  95 

to  apply  to  Parliament  for  a  remedy,  which  might  take  either 
of  two  forms  suggested  by  the  judges  of  the  High  Court. 
Indian  divorces  might  be  rendered,  simply  and  at  once,  as 
binding  in  England  as  divorces  by  the  English  Divorce  Court, 
or  they  might  be  registered  there,  and  if  not  appealed  from 
within  a  certain  period  they  might  acquire  the  validity  of 
an  English  matrimonial  decree. 


January  21,  1863. 

Mr.  Maine  introduced  the  Bill,  and  moved  that  it  be  referred  to  a 
select  committee. 

He  said  that,  in  introducing  this  Bill,  he  ventured  to 
think  that  he  anticipated  the  wishes  of  the  Council  by  offer- 
ing no  arguments  in  support  of  the  principle  upon  which  it 
was  founded.  Whatever  were  the  difficulty  of  the  questions 
involved  in  the  establishment  of  a  tribunal  having  power 
to  decree  a  divorce  a  vinculo  vnitrimonii  (and  he  would  be 
the  first  to  admit  that  the  difficulty  of  those  questions 
w^as  only  equalled  by  the  difficulty  of  discussing  them  satis- 
factorily in  a  deliberative  assembly),  he  assumed  that  the 
Council  would  be  of  opinion  that,  so  far  as  they  related  to 
principle,  they  had  been  solved  in  England  for  good  or  for 
evil.  He  imagined  that  those  who  had  the  strongest  doubts 
of  the  policy  of  this  measure,  whether  on  grounds  of  public 
morality  or  expediency,  would  still  feel  that  the  privilege  of 
suing  for  a  dissolution  of  marriage  should  not  depend  on  an 
accident  of  locality,  and  that  nobody  would  wish  to  perpe- 
tuate the  exceptional  disabilities  under  which  the  Queen's 
subjects  in  India  were  placed  in  respect  of  matrimonial  law. 

There  were,  it  should  be  stated,  some  reasons  why  the 
Council  should  approach  the  subject  with  less  misgiving  than 
they  would  probably  have  felt  if  they  had  been  asked  to  legis- 
late within  a  shorter  period  after  the  creation  of  the  English 
Divorce  Court.  They  came  to  it  with  the  advantage  of 
English  experience.  It  would  be  vain  to  deny  that  some  of 
the  earlier  effects  of  the  establishment  of  the  new  tribunal 
were  such  as  to  distress,  and  perhaps  to  alarm,  the  public 
feeling  of  England.     The  number  of  applications  for  relief  on 


96  SPEECHES   OF   SIR    HENRY    MAINE 

the  files  of  the  Court  seemed  at  first  enormous  ;  the  scandal 
occasioned  by  the  pubHcation  of  its  proceedings  was  far 
beyond  all  previous  anticipations.  These  evils,  however,  at 
least  in  their  excess,  proved  to  be  only  temporary.  It  was 
shortly  proved  that  the  multitude  of  cases  submitted  to  the 
Divorce  Court  arose  from  the  accumulations  of  past  years,  and 
that  the  earlier  petitioners  were  almost  invariably  persons 
whom  the  costliness  and  cumbrousness  of  the  old  procedure 
in  divorce  had  discouraged  .and  debarred  from  relief  It  was 
only  quite  recently  that  what  might  be  called  the  normal 
statistics  of  the  English  tribunal  had  been  disclosed,  and 
there  was  much  reason  to  believe  that  the  annual  growth  of 
cases  of  this  description  would  not  be  extraordinary,  and  that, 
though  greater  than  could  be  wished,  it  was  not  greater  than 
might  be  expected.  The  other  evil,  the  scandal  attendant 
on  publicity,  had  been,  it  was  only  just  to  say,  very  greatly 
abated  by  the  good  taste  and  good  feeling  of  English  news- 
papers, which,  co-operating  with  general  sentiment,  had  re- 
duced the  reports  of  these  cases  within  the  narrowest  limits 
compatible  with  publication.  It  was  probably  well  known  to 
the  Council  that  the  public  scandal  it  occasioned  was,  for  a 
lono-  time,  considered  to  be  the  most  unfortunate  incident  of 
the  Court,  and  an  amendment  to  one  of  the  supplemental 
Bills,  providing  that  it  should  sit  with  closed  doors,  was,  if  he 
remembered  rightly,  lost  by  a  narrow  majority  in  the  House 
of  Commons. 

It  might  be  asked  why,  with  English  experience  to  guide 
them,  they  had  not  thought  of  engrafting  some  such  provision 
on  this  Bill.  He  was,  however,  one  of  those  who  thought 
that  there  was  always  the  strongest  presumption  in  favour 
of  that  perfect  publicity  which  was  the  oldest  characteristic 
of  the  administration  of  English  justice,  and  in  this  case 
experience  had,  to  a  great  extent,  borne  out  the  antecedent 
presumption.  For  the  publicity  given  to  those  cases,  though 
it  no  doubt  had  its  questionable  aspect,  had  been  the  means 
of  protecting  society  in  England  against  one  of  the  dangers 
with  which  it  was  menaced  by  the  change  in  the  law.  It 
had  rendered  connivance  or  collusion  between  the  petitioner 
and  respondent  in    a  divorce  suit,  if  not  impossible,  at  all 


DIVORCE  97 

events,  excessively  difficult.  However  carefully  and  dex- 
terously the  plot  might  have  been  laid,  it  rarely  happened 
that  some  one  was  not  cognisant  of  a  circumstance  which 
showed  the  understanding  between  the  conspirators,  and  the 
chances  were  that  the  attention  of  the  person  so  cognisant 
was  attracted  to  the  report  of  the  proceedings.  It  soon  be- 
came known  in  England  that  information  of  the  kind  was 
easily  procurable,  and  to  take  advantage  of  this  information, 
one  of  the  last  and  most  valuable  of  the  Divorce  Acts  was 
framed.  By  this  Act  it  was  provided  that  the  original  decree  of 
the  matrimonial  court  was  to  be  only  provisional  ;  in  tech- 
nical phrase,  a  decree  7iisi  \  and  before  it  was  made  absolute 
the  Queen's  advocate  and  the  Queen's  proctor  were  permitted 
to  intervene  in  the  proceedings,  showing  cause  why  it  ought 
not  to  be  passed.  The  ground  of  their  intervention  was  to 
be  connivance,  or  collusion,  and  for  the  information  which 
caused  them  to  move  they  were  indebted  to  the  publication 
of  the  proceedings  on  the  first  hearing.  The  Government 
of  India  had  incorporated  this  Act  with  this  Bill,  substituting 
only  the  Advocate  General  and  the  Solicitor  to  Government, 
for  the  Queen's  advocate  and  Queen's  proctor. 

The  Bill,  he  might  now  mention,  followed  very  closely  the 
English  Acts,  consolidating  into  one  measure  the  body  of 
English  statutory  matrimonial  law.  In  one  point  only  it  was 
proposed  to  depart  from  the  tenor  of  the  English  Acts.  In 
conformity  with  the  practice  of  the  High  Courts  when  exercising 
original  jurisdiction,  and  with  the  approval  of  the  great  majority 
of  the  judges  of  those  courts — of  all  the  judges  indeed,  with 
one  exception — they  proposed  to  omit  the  'provision  of  the 
English  Acts  for  the  trial  of  question  of  fact  by  jury  at  the 
option  of  the  parties  to  a  divorce  suit.  There  did  not  seem  to 
be  sufficient  reason  for  placing  matrimonial  suits  on  a  different 
footing  from  other  civil  proceedings  in  India.  He  would  not 
have  adverted  to  the  point  if  one  of  the  judges  of  the  High 
Court  of  Bombay — the  only  judge,  he  might  remark,  who 
was  opposed  to  the  Bill  on  principle— had  not  stated  that  he 
saw  no  reason  why  the  English  system  of  trial  by  jury  in 
divorce  cases  should  not  be  adopted  in  India.  He  (Mr. 
Maine)  must  observe,  however  that  in  adopting  the  system 

IT 


98  SPEECHES   OF   SIR   HENRY   MAINE 

of  inquiry   practised    by   the    Indian  Supreme   Courts,  they 
certainly,  if  he   might   so  speak,  anticipated  the   results  to- 
wards which  English  experience  in  this  matter  seemed  to  be 
pointing.      It   was   true  that  the  English   Divorce  Acts   con- 
ferred on  either  of  the  parties  the  power  of  demanding  a  jury 
if  they  thought  proper  ;  but  the  reason  of  this  probably  was 
that  the  English  judge  of  the  Divorce  Court  had  no  power 
of  assessing  damages.     The  proceedings  before  the  Divorce 
Court  took  the  place,  under  the  recent  statutes,  not  only  of 
the  investigation  which  used  to  take  place  before  the  House 
■of  Lords,  and  of  the  inquiry  before  the  Ecclesiastical  Court, 
but  also  of  the    action    for    criminal  conversation  in  which 
damages    were  recoverable.     Still,  though  the  judge  of  the 
Divorce  Court  in  England  had  no  power  of  assessing  damages 
without  a  jury,  the  fact  was,  that  the  demands  for  juries  on 
the  part  of  the  litigants  were  steadily  diminishing,  and  the 
vast  majority  of  cases  were  probably  now  tried  by  the  judge 
solely.     Nor  was  it  an  immaterial  consideration  that  the  duty 
of  serving  on  juries  in  the  Divorce  Court  was  regarded  with 
the  utmost  repugnance  by  the  gentlemen  liable  to  it,  and  no 
small  difficulty  was  practically  experienced  in  completing  the 
requisite    number.      He    was    disposed    also  to  attach  great 
weight  to  that  stricter  decorum  which  it  was  always  possible 
to  observe  when  these  cases  were  tried  before  a  judge,  than 
when  they  were  investigated,  necessarily  with  much  greater 
fulness,  before  a  popular  tribunal.     These  reasons  would,  he 
trusted,  be  thought  by  the  Council  to  justify  the  Government 
in    taking  the  course  recommended  by  the  majority  of  the 
judges,  rather  than  that  suggested  by  the  Chief  Justice  of 
.Bombay. 

There  were  many  other  points  on  which  opinions  were 
expressed  by  the  learned  judges  of  the  various  High  Courts, 
but  these  were  points  of  detail  which  would  more  fitly 
be  considered  by  the  select  committee.  The  only  remain- 
ing observation  he  had  to  offer  was,  that  the  scheme  of 
the  Bill  was  this :  it  was  accommodated  to  the  existing 
matrimonial  jurisdiction.  Whatever  were  the  limits  of  the 
matrimonial  jurisdiction  which  the  High  Courts  had  inhe- 
rited from  the  Supreme  Courts,  to  those  limits  would  extend 


DIVORCE  99 

the  new  power  of  decreeing  dissolution  of  marriage.  The 
Bill  would  necessarily  be  delayed  on  account  of  the  legal  dif- 
ficulties which  he  mentioned  on  a  former  occasion. 


Febru.\ry  26,  1S69. 

Mr.  Maine  moved  that  the  report  of  the  select  committee  on  the 
Bill  be  taken  into  consideration.     He  said  : 

This  measure  is  obviously  one  of  great  social  impor- 
tance ;  but  I  do  not  think  I  need  trouble  the  Council  at  any 
wearisome  length  with  an  analysis  or  description  of  its  provi- 
sions. It  is  substantially  a  consolidation  measure.  It  puts 
together  the  English  statute-law  on  the  subject  in  a  more 
orderly  form,  and,  I  trust,  in  clearer  language,  and  it  incor- 
porates the  principal  recent  decisions  of  the  Divorce  Court. 
But  in  the  main  its  principles  are  those  of  the  statutes  regu- 
lating the  jurisdiction  of  the  English  Court  of  Divorce  and 
Matrimonial  Causes.  I  shall  therefore  probably  discharge 
my  duty  to  the  Council  by  calling  its  attention  to  the  points 
in  which  the  Bill  differs  from  the  English  law,  and  to  the 
provisions  in  it  which  are  specially  characteristic  of  India. 

The  first  important  section  which  requires  remark  is  the 
second.  In  connection  with  it,  I  will  take  leave  to  remind 
the  Council  of  the  history  of  the  Bill.  It  has  been  seven 
}-ears  before  the  Council  of  the  Governor  General.  On  ex- 
amining the  parliamentary  debates  upon  the  English  Divorce 
Act,  I  find  it  was  then  distinctly  contemplated  that  a  measure 
of  divorce  relating  to  India  should  be  passed  either  in  India 
or  at  home.  The  Secretary  of  State  appears  to  have  pre- 
ferred Indian  legislation,  and  directed  the  Government  of 
India  to  submit  to  this  Council  a  Bill  corresponding  with  the 
English  Act.  It  was  in  Sir  H.  Harington's  hands  when  I 
came  out  here  in  1862,  and  he  transferred  it  to  me.  But  I 
did  not  carry  it  through  more  than  a  single  stage  on  account 
of  the  doubts  which  I  felt  myself,  and  which  were  strongly 
stated  by  some  of  the  judges,  as  to  the  power  of  this  legis- 
lature to  enable  the  courts  to  decree  divorces  of  persons 
married  in  England  which  the  English  courts  would  recog- 
nise.    Though    the    matter    is    somewhat  technical,   I    must 


lOO  SPEECHES   OF   SIR    HENRY   MAINE 

attempt  to  explain  to  the  Council  what  the  legal  difficulties 
were.  At  that  time  the  opinions  of  lawyers  were  much 
divided  as  to  the  relative  authority  to  be  attached  to  two 
cases  which  have  become  famous  in  connection  with  this  sub- 
ject. Lolkys  case,  which  is  considerably  the  older  of  the  two, 
was  as  follows  : — Lolley  was  a  man  who  married  a  wife  in 
England  and  took  her  to  Scotland,  where  he  obtained,  or 
rather  forced  her  to  obtain,  a  divorce  from  the  Scottish  con- 
sistorial  court  on  the  ground  of  his  adultery.  He  then  re- 
turned to  England  and  married  again.  Afterwards  he  was 
indicted  for  bigamy  and  convicted,  the  point  whether  he  had 
been  legally  divorced  being  at  the  same  time  reserved  for  the 
consideration  of  the  judges.  The  judges  decided  that  the 
conviction  must  stand,  in  terms  which  were  long  considered 
to  establish  that  a  foreign  court  could  not  dissolve  a  marriage 
that  had  been  solemnised  in  England.  Long  afterwards,  in 
1835,  the  House  of  Lords  decided  the  case  of   Wai'render  \. 

Warrender}  Here  the  appellant  and  respondent,  Sir  George 
and  Lady  Warrender,  had  both  a  Scottish  domicile,  but  the 
marriage  had  been  celebrated  in  England  and  the  adultery 
was  alleged  to  have  been  committed  in  France.  Lord 
Brougham  gave  judgment  in  terms  which  would  appear  to 
sanction  the  rule  which  seems  to  be  the  general  rule  of  private 
international  law,  that  personal  status  follows  domicile,  and 
that  the  question  whether  a  man  is  a  minor,  or  a  married 
man,  or  a  divorced  man  is  to  be  determined  by  the  law  of 
the  country  in  which  he  is  domiciled.  Lord  Brougham,  who 
had  been  counsel  for  Lolley,  spoke  in  Warrender  v.  War- 
render  with  much  doubt  of  the  authority  of  Lolley' s  case,  and  it 
mieht  almost  be  considered  to  have  been  overruled,  if  it 
had  not  been  for  the  observations  of  Lord  Lyndhurst,  who 
followed  Lord  Brougham,  and  who,  while  agreeing  with  the 
decision  of  the  House,  stated  that  he  did  not  intend  in  any 
way  thereby  to  throw  discredit  on  the  older  decision.    Hence 

awyers  had  to  decide  between  two  decisions  which  are  cer- 
tainly difficult  to  reconcile. 

The  Government  of  Lord  Elgin  wrote  to  the  Secretary  of 
State,  who  admitted  the  weight  of  the  doubts  which  had  been 

'  2  Shaw  &  Maclean,  189  ;    9  Bligh,  89. 


DIVORCE  lOI 

felt  in  India,  and  stated  that  Her  Majesty's  Government  would 
bring  a  Bill  into  Parliament.  After  waiting  two  years,  Sir 
John  Lawrence's  Government,  which  had  been  much  pressed 
by  the  applications  of  East  Indians  for  relief,  begged  the 
attention  of  Her  Majesty's  Government  to  the  subject,  but 
was  told  that  a  royal  commission  was  about  to  be  appointed 
at  home  to  investigate  the  whole  subject  of  marriage  and 
divorce  in  India  and  the  colonies,  and  that  there  could  be  no 
English  legislation  till  its  report  had  been  received.  Another 
interval  of  two  years  occurred,  and  the  Government  of  India 
again  pressed  the  subject  on  the  Queen's  Government.  They 
were  told  in  reply  that  the  commission  had  found  the  subject 
of  marriage  so  difficult  that  there  was  no  near  prospect  of  their 
entering  upon  that  of  divorce.  We  were  therefore  requested 
to  legislate  to  the  extent  of  our  power,  or  in  other  words  to 
exclude  from  our  measure  persons  who  had  been  married  in 
England,  large  and  increasing  as  the  class  appeared  to  be.  In 
this  rather  unsatisfactory  state  of  things  the  select  committee 
recommenced  its  labours,  but  it  turned  out  that,  just  at  the 
same  time,  the  House  of  Lords  was  giving  a  decision  which 
appeared  to  incline  the  balance  against  Lolkys  case  and  in 
favour  of  the  doctrine  of  Warrender  v.  Warrender.  This 
was  Shaiu  v.  Gould}  Here  the  judgments  of  Lord  Cranworth 
and  Lord  Westbury  appeared  to  lay  down  the  law  in  much 
the  same  terms  as  Lord  Brougham — that  a  foreign  court 
could  dissolve  an  English  marriage  when  the  parties  were 
domiciled  abroad. 

Section  2  of  the  Bill,  however,  does  not  make  it  a  condition 
of  jurisdiction  that  the  petitioner  should  be  domiciled,  and  it 
is  with  a  view  of  explaining  this  omission  that  I  have  made 
this  long  statement.  In  the  first  place,  though  a  man's 
domicile  of  origin  is  easily  proved,  a  new  domicile  is  pro- 
verbially difficult  to  establish.  It  depends  partly  on  length 
of  residence  in  the  foreign  country,  partly  on  intention  to 
stay  there.  I  myself  heard  the  present  Lord  Chancellor,  Lord 
Hatherley,  describe  domicile  as  a  function  of  time  and  in- 
tention, and  when  an  eminent  judge  defines  it  in  terms  half 
mathematical  and  half  metaphysical,  it  may  readily  be  inferred 
'  L.R.  3  H.L.  55,  92,  93. 

UNWEKGITY  OF  C/ilFORNlA 
RlVt:»\oiD£ 


102  SPEECHES   OF   SIR    HENRY   MAINE 

that  it  is  not  a  thing  easy  to  be  proved.  Moreover,  as  the 
House  of  Lords  has  recently  remarked,  the  question  of 
domicile  hardly  ever  arises  with  regard  to  living  persons. 
Now,  not  only  will  the  persons  who  will  petition  under  this 
measure  be  living,  but  they  will  have  a  clear  intention  of  not 
staying  permanently  in  India.  A  still  further  perplexity  arises 
from  the  fact  that  the  substantive  law  of  domicile  in  India  has 
recently  been  altogether  changed.  The  following  are  the 
provisions  of  the  Indian  Succession  Act  •  on  the  subject  of  new 
domicile  : — 

'  A  man  acquires  a  new  domicile  by  taking  up  his  fixed  habitation 
in  a  country  which  is  not  that  of  his  domicile  of  origin. 

'■Explanation. — A  man  is  not  to  be  considered  as  having  taken  up 
his  fixed  habitation  in  British  India  merely  by  reason  of  his  residing 
there  in  Her  Majesty's  civil  or  military  service,  or  in  the  exercise  of 
any  profession  or  calling. 

'  Any  person  may  acquire  a  domicile  in  British  India  by  making 
and  depositing  in  some  office  in  British  India  (to  be  fixed  by  the 
local  government)  a  declaration  in  writing  under  his  hand  of  his 
desire  to  acquire  such  domicile,  provided  that  he  shall  have  been  resi- 
dent in  British  India  for  one  year  immediately  preceding  the  time  of 
his  making  such  declaration.' 

Now  this  domicile  under  the  Succession  Act  is  a  forensic 
domicile.  It  is  a  domicile  artificially  created  as  a  foundation 
for  rights  and  remedies.  But  it  is  not  the  domicile  of  private 
international  law,  nor  is  it  the  domicile  spoken  of  by  Lord 
Brougham,  Lord  Cranworth,  and  Lord  Westbury.  The  diffi- 
culty is  so  great  that  the  select  committee  might  have  found 
it  insuperable  but  for  Lord  Colonsay's  modification  of  the  law 
as  laid  down  by  the  other  law-lords  in  SJimv  v.  Gould : 

'  It  was  said  that  a  foreign  court  had  no  jurisdiction  in  the  matter 
of  divorce  unless  the  parties  are  domiciled  in  that  country  ;  but  what 
is  meant  by  "  domicile  ?  "  I  observe  that  it  is  designated  sometimes  as 
a  bona-fide  dom.icile,  sometimes  as  a  real  domicile,  sometimes  as  a 
complete  domicile,  sometimes  as  a  domicile /^ir  all  purposes.  But  I 
must,  with  deference,  hesitate  to  hold  that  on  general  principles  of 
jurisprudence,  or  rules  of  international  law,  the  jurisdiction  to  redress 
matrimonial  wrongs,  including  the  granting  of  a  decree  of  divorce  a 
vinculo,  depends   on  there  being  a  domicile  such  as  seems  to  be 

'  Act  X.  of  1865.     The  sections  cited  in  the  text  are  numbered  respectively 
10  and  II. 


DIVORCE  103 

implied  in  some  of  these  expressions.  Jurisdiction  to  redress 
wrongs  in  regard  to  domestic  relations  does  not  necessarily  depend 
on  domicile  for  all  purposes.  If  the  decisions  to  which  I  have 
referred  proceeded  on  the  ground  that  the  resort  to  the  foreign 
country  was  merely  for  the  temporary  purpose  of  giving  to  the 
courts  of  that  country  the  opportunity  of  dealing  with  the  case 
according  to  their  own  law,  and  thereby  obtaining  a  dissolution  of 
the  marriage,  and  that  such  was  the  object  of  both  parties,  these 
decisions  might  be  said  to  derive  support  from  principles  of  general 
law,  on  the  ground  of  being  /;/  fraiidein  legis.  But  if  you  put  the 
case  of  parties  resorting  to  Scotland  with  no  such  view,  and  being 
resident  there  for  a  considerable  time,  though  not  so  as  to  change 
the  domicile  for  all  purposes,  and  then  suppose  that  the  wife  commits 
adultery  in  Scotla?id,  and  that  the  husband  discovers  it,  and  imme- 
diately raises  an  action  of  divorce  in  the  court  in  Scoflaiid  where  the 
witnesses  reside,  and  where  his  own  duties  detain  him,  and  that  he 
])roves  his  ease  and  obtains  a  decree,  which  decree  is  unquestion- 
ably good  in  ScotIa?id,  and  would,  I  believe,  be  recognised  in  most 
other  countries,  I  am  slow  to  think  that  it  would  be  ignored  in  England 
because  it  had  not  been  pronounced  by  the  Court  of  Divorce  here.' 

I  apprehend  that  Lord  Colonsay  has  here  described  with 
exactness  the  position  of  Europeans  in  India.  They  are 
resident  here,  but  their  residence  falls  somewhat  short  of 
domicile  :  their  duties  keep  them  here,  and  under  the  pro- 
visions of  the  Bill  they  can  only  invoke  the  new  jurisdiction 
when  the  adultery  is  committed  in  India.  I  have  much  con- 
fidence that  the  English  courts  will  recognise  Indian  adjudi- 
cations under  this  measure.  There  seems  to  me  to  be  much 
weight  in  the  dictum  of  a  high  authority,  Dr.  Lushington,  in 
Comvay  v.  Beazley)     He  doubted 

'  whether  it  was  the  intention  of  the  judges  to  decide  a  principle  of 
universal  operation  absolutely,  and  without  reference  to  circum- 
stances, or  whether  they  must  not,  almost  of  necessity,  be  presumed 
to  have  confined  themselves  to  the  particular  circumstances  that 
were  then  under  consideration.' 

The  truth  is  that  the  hesitation  of  English  judges  to 
recognise  foreign  divorces  has  manifestly  arisen  from  the 
fact  that  the  divorces  before  them  had  in  all  cases  been  Scotch 
divorces,  from  their  feeling  that  Scotland  was  very  near  to 
England,  and  perhaps  from  a  suspicion  that,  as  Scotch  mar- 

'  3  Hagg.,  Eccl.  642. 


I04  SPEECHES   OF   SIR    HENRY   MAINE 

riages  are  easily  contracted,  so  Scotch  divorces  are  easily- 
obtained.  But  let  the  Council  consider  whether  the  sort  of 
divorce  to  which  the  English  courts  are  likely  to  object  can 
be  obtained  in  India  under  this  measure.  First  of  all,  the 
parties  must  come  to  India,  which  is  a  very  different  thing 
from  going  to  Scotland  ;  then  the  adultery  or  other  offence 
must  be  committed  in  India.  In  a  case  of  an  improper 
divorce  there  would  almost  inevitably  be  collusion  or  conni- 
vance, and,  moreover,  collusion  or  connivance  under  very  sus- 
picious circumstances.  All  the  careful  machinery  of  the  Bill 
for  the  detection  of  these  would  come  into  play,  and  the 
judgment  of  divorce  would  never  be  given.  So  much  for  per- 
sons married  in  England.  Over  all  the  other  classes  indi- 
cated in  section  2,  we  have  power  to  give  the  courts  a  com- 
plete jurisdiction. 

Section  4  raises  a  question  which  I  will  not  call  doubtful, 
but  upon  which  some  of  the  persons  who  have  addressed  the 
committee  are  divided.  It  is  the  question  whether  the  Dis- 
trict Courts  shall  be  allowed  a  jurisdiction  in  divorce.  The 
main  reason  why  the  select  committee  had  given  this  jurisdic- 
tion, was  that  the  refusal  of  it  would  amount  to  a  denial  of 
relief  to  large  classes  of  persons  affected  by  the  Bill.  It 
would  be  a  mere  mockery  of  East  Indian  clerks  in  distant 
cities,  and  of  Native  Christians  in  Mufassal  villages,  to  tell 
them  to  come  to  the  High  Courts  in  the  presidency  towns  for 
judgment  of  divorce.  It  is,  however,  said  that  the  District 
Courts  are  not  equal  to  these  duties.  The  argument  is  one 
which  I  look  upon  with  great  distrust.  If  it  be  established 
that  certain  new  legal  rights  and  remedies  should  be  created 
for  the  benefit  of  any  class  of  Her  Majesty's  subjects,  and  the 
Indian  courts  are  incompetent  to  administer  them,  the  proper 
inference  seems  to  be  that  the  courts  should  be  reformed,  not 
that  the  rights  and  remedies  should  be  refused.  But  the 
charge  is,  in  truth,  often  hastily  made,  and  moreover  there  is 
nothing  specially  difficult  in  questions  of  divorce.  They  are 
important  on  account  of  their  social  importance,  but  they  for 
the  most  part  involve  very  simple  questions  of  fact.  The 
Lieutenant  Governor  of  the  Panjab  ^  has  observed  that  he 

'  The  late  Sir  Donald  Macleod. 


DIVORCE  105 

does  not  think  that  his  Deputy  Commissioners  are  equal  to  the 
new  jurisdiction.  He  has  apparently  not  noticed  that,  under 
the  interpretation  clause,  the  District  Judge  is,  in  a  non-regu- 
lation province,  a  Commissioner,  and  I  really  cannot  see  why 
the  Commissioners  in  the  Panjab  cannot  dispose  of  these 
cases.  Only  the  other  day  two  gentlemen  with  military 
titles  decided  a  case  successively,  in  which  the  Government 
were  interested  to  the  extent  of  a  million  sterling,  and  in 
which  very  difficult  questions  of  public  law  were  involved  ; 
and  their  decree  was  confirmed  by  the  Chief  Court.  If,  how- 
ever, it  once  be  granted  that  the  District  Courts  must  have 
jurisdiction,  their  exercise  of  it  is  by  the  measure  fenced 
round  with  many  safeguards.  The  High  Courts  can  call  up  at 
any  time  any  case  that  presents  special  difficulty.  Nor  do  we 
provide  a  mere  appeal  from  their  decisions,  because  the  parties 
may  be  poor  or  they  may  have  an  understanding  with  one 
another,  and  thus  there  might  be  no  appeal.  We  have  applied 
to  the  decrees  of  the  District  Courts  the  same  principle  which 
is  applied  in  India  to  capital  sentences,  and  have  required 
that  they  be  confirmed  by  the  High  Court,  which  has  full 
powers  of  calling  for  fresh  evidence.  Sir  Donald  Macleod 
has  also  remarked  on  the  provision  in  section  7,  that  the 
principles  and  rules  of  the  English  Divorce  Court  are  to  be 
followed  by  the  Indian  judges,  and  he  remarks  that  the 
Panjab  officers  have  no  time  to  master  these  principles  and 
rules.  It  is  necessary  that  I  should  explain  that  this  Bill 
is  substantially  a  code  :  it  is  not  easy  to  conceive  a  point 
arising  which  it  will  not  dispose  of  There  was,  however,  no 
obligation  imposed  on  the  committee  to  construct  a  code, 
and  therefore  it  is  possible  that  a  question  may  arise  which 
is  not  expressly  provided  for.  To  meet  such  a  case,  it  is 
necessary  to  indicate  the  source  whence  the  rules  applicable 
to  it  are  to  be  taken.  There  is,  however,  no  more  hardship 
in  having  to  look  for  that  source  than  in  having  to  search  for 
principles  in  other  departments  of  law,  which  the  Panjab 
courts  must  constantly  be  doing.  I  imagine,  too,  that  any 
specially  difficult  case  will  always  be  called  up  by  the  High 
Court. 

I  have  some  remarks  to  make  on  section   10,  which  I  will 


I06  SPEECHES   OF   SIR   HENRY    MAINE 

postpone  ;  but  I  will  now  call  attention  to  the  second  clause 
of  the  section,  which  provides  that  a  wife  may  have  a  divorce 
on  the  ground  that  since  the  marriage  her  husband  has  ex- 
changed Christianity  for  some  other  religion,  and  has  gone 
through  a  form  of  marriage  with  another  woman.  The  pro- 
vision has  been  necessitated  by  a  judgment  of  the  High 
Court  at  Madras.  The  facts  of  the  case  are  very  strange,  and 
are  almost  as  curious  an  illustration  of  the  effect  of  our  rigid 
legal  ideas  upon  loose  Native  notions  of  custom,  as  was  the 
discovery  which  we  made  the  other  day  as  to  the  state  of  the 
law  on  Native  marriages.  A  Hindu  was  converted  to  Chris- 
tianity, and,  as  a  Christian,  married  a  Christian  girl.  He  then 
reverted  to  Hinduism,  and  it  seems  to  have  been  found  out 
that  he  could  be  readmitted  to  caste  on  certain  conditions, 
the  principal  of  which  was,  as  I  am  informed,  that  he  should 
submit  to  have  his  tongue  pierced  with  a  red-hot  iron.  He 
then  proceeded  to  marry  one  or  more  Hindu  wives,  and  was 
indicted  under  the  Penal  Code^  for  the  offence  which  corre- 
sponds with  English  bigamy.  The  High  Court,  however, 
decided  that,  having  relapsed  into  Hinduism,  he  reacquired 
his  rights  of  polygamy.^  The  Bishop  of  Madras  and  the 
missionaries  of  Southern  India  arc  most  anxious  that  this 
decision  should  be  set  aside  by  legislation.  I  apprehend, 
however,  my  lord,  that,  according  to  the  ideas  which  now 
prevail  as  to  the  almost  reverential  respect  which  is  due  to 
what  a  part  of  the  Natives  of  this  country  declare  to  be  their 
custom,  social  or  religious,  it  is  not  safe  for  this  Council  to 
revise  legislatively  the  law  of  the  High  Court,  or  to  deny  the 
proposition  that  a  Native  of  India  may  acquire  a  right  to  a 
plurality  of  wives  through  the  actual  cautery  of  the  tongue. 
But  I  think  I  shall  have  the  whole  Council  with  me  in  saying 
that  we  can  and  ought  to  relieve  the  wife  from  the  marriage 
bond.  It  will  be  allowed  that,  from  the  Christian  point  of 
viev/,  the  husband  has  been  guilty  both  of  adultery  and  deser- 
tion. But  the  adultery  is  not  legally  adultery  owing  to  the 
decision  of  the  Madras  Court,  nor  is  there  desertion,  since  the 
husband  may  always  say  that  it  is  open  to  the  Christian  wife 
to  live  in  his  house  with  the  others. 

'  Sec.  494.  -  See  Anonymous,  3  Mad.,  H.  C.  Rep.,  Ap.  7. 


DIVOI^CE  107 

At  this  point,  it  is  proper  that  I  should  advert  to  an 
omission  which  the  select  committee  sanctioned,  but  which 
has  been  much  complained  of  by  several  ladies  and  gentle- 
men who  have  addressed  me  in  private  letters.  They  ask 
that  what  they  term  'a  validity  clause '  may  be  inserted  in 
the  Bill.  I  presume  the  complaint  is  that  we  do  not  propose 
to  confer  on  the  High  Court  the  special  jurisdiction  which  is 
vested  in  the  Divorce  Court  by  a  separate  statute,  21  &  22  Vic. 
cap.  93.  That  statute  enables  the  Court  to  make  declarations 
of  the  validity  or  invalidity  of  a  marriage,  or  of  the  legitimacy 
or  illegitimacy  of  children.  There  is  no  doubt  that,  so  far  as 
regards  that  branch  of  it  which  relates  to  marriage,  its  prin- 
cipal object  was  to  establish  marriages  of  which  the  validity 
had  been  doubted,  and  thus  to  quiet  scrupulous  consciences 
and  to  settle  rights.  It  can  hardly  be  said  to  have  been 
designed  as  a  contrivance  for  making  decrees  of  nullity  on 
grounds  less  material  than  those  set  forth  in  the  Bill.  The 
select  committee  considered  the  matter  carefully,  and  refused 
to  create  the  jurisdiction  out  of  deference  to  the  authority  of 
Chief  Justice  Sir  Barnes  Peacock  and  Mr.  Justice  Norman. 
The  latter  has  given  his  reasons  at  length  : 

'To  the  question  whether  it  is  desirable  to  add  a  clause  to  the 
Indian  Divorce  Bill,  empowering  the  courts  to  make  declarations  of 
legitimacy,  and  of  the  validity  and  invalidity  of  marriages,  I  would 
answer  in  the  negative. 

'  Such  decrees  would  not  have  an  extra-territorial  operation.  They 
would  not  determine  conclusively  the  status  of  the  parties,  or  be 
necessarily  accepted  as  binding  on  English  courts  with  reference  to 
questions  as  to  the  inheritance  of  land. 

'The decrees  would  not  be  like  decrees  in  re/n,  binding  and  con- 
clusive on  all  persons  even  in  this  country.  The  rights  of  parties  not 
cited  would  have  to  be  saved,  as  is  done  by  the  Sth  section  of  the 
21  &  22  Vic.  cap.  93. 

'  We  have  in  this  country  considerable  experience  on  the  subject  of 
suits  for  declarations  of  right.  And,  for  myself,  I  have  no  hesitation 
in  saying  that  such  a  suit  against  a  person  who  has  no  actual  present 
interest  in  the  matter  to  be  litigated,  is  a  very  unsatisfactory  mode  of 
bringing  a  question  before  the  court  for  adjudication.  There  is  some- 
times no  real  contest.  The  parties  against  whom  the  declaration  is 
sought  do  not  feel  any  deep  interest  in  a  question  which  at  the  time 
affects  them  but  very  remotely.     In  such  cases,  at  least,  the  court 


I08  SPEECHES   OF   SIR    HENRY   MAINE 

has  to  act  on  imperfect  information,  even  if  no  fraud  is  practised 
upon  it.' 

'  If  the  defendants  or  parties  cited  do  take  an  interest  in  the 
matter,  it  appears  to  me  that  they  are  subjected  to  a  great  hardship 
in  being  compelled  to  litigate,  perhaps  at  great  expense,  a  question 
in  which  at  the  time  they  have  not,  and  possibly  may  never  have, 
any  actual  pecuniary  interest,  and  the  answer  to  which  depends  on 
facts  of  which,  in  all  probability,  they  have  no  personal  knowledge.' 

I  have  always,  myself,  ventured  to  think  this  jurisdiction 
of  doubtful  expediency  even  in  England.  There  is  always 
danger  in  enabling  a  court  to  exercise  its  powers  when  there 
is  not  before  it  any  distinct  issue  or  dispute  between  parties. 
When,  however,  it  is  considered  that,  were  the  jurisdiction  to 
be  conferred  on  the  High  Courts,  their  decrees  would  not  oper- 
ate extra-territorially,  and  a  person  re-marrying  on  their 
authority  might  be  indicted  for  bigamy  in  England — when, 
further,  we  remember  that  the  witnesses  would  constantly 
have  to  be  examined  under  commission  in  England,  and  that 
the  persons  who  would  have  to  be  cited  to  defend  their 
rights  would  constantly  be  living  at  the  other  end  of  the 
world — there  can  be  little  question  that  the  select  committee  has 
acted  prudently  in  denying  such  powers  to  the  Indian  courts. 
In  saying  this,  however,  I  do  not  mean  to  say  that  several  of 
the  letters  I  have  received  do  not  tell  a  very  unhappy  story. 
I  can  only  reply  that  to  give  the  writers  relief  does  not  fall 
within  the  principles  and  purposes  of  this  Bill. 

I  merely  call  attention,  in  passing,  to  sections  i6  and 
17,  which  describe  the  securities  against  collusion  and  conni- 
vance provided  by  the  measure.  In  the  case  of  decrees  by 
the  High  Court,  they  are  to  be  in  the  first  instance,  as  in  Eng- 
land, decrees  nisi,  and  are  not  to  be  made  absolute  for  six 
months.  Decrees  for  dissolution  and  of  nullity  by  the  District 
Courts  are  not  to  receive  confirmation  before  six  months  have 
elapsed,  during  which  interval  evidence  as  to  collusion  or  con- 
nivance, if  it  is  forthcoming,  can  be  collected. 

There  was  a  slight  difference  in  the  committee  as  to  the 
last  clause   of  section    19,  though  the  dissentients  have  not 

'  See  now  the  Specific  Relief  Act       contains  the  present  Indian  law  on  the 
I.   of  1877,  chap,  vi.,  which,   with  the       subject  of  declaratory  decrees. 
decisions  of  the  High  Courts  thereon, 


DIVORCE  109 

thought  the  matter  of  sufficient  importance  to  record  their 
dissent.  The  High  Courts  inherit  from  the  Supreme  Courts, 
which  in  their  turn  inherited  from  the  Ecclesiastical  Courts,  a 
jurisdiction  to  make  decrees  of  nullity  of  marriageon  theground 
of  force  or  fraud.  It  is  very  rarely  put  into  exercise.  But  some 
gentlemen  thought  that  force  or  fraud  should  be  specified  as 
distinct  grounds  of  nullity,  as  is  done  in  the  New  York  code. 
The  objection  is  that  force  is  quite  unknown  among  Europeans, 
and  equally  so  among  Native  Christians.  There  are  many 
here  who  can  speak  with  more  knowledge  than  myself  on  the 
point.  But  I  am  told  that  what  appears  to  us  the  extraordi- 
nary publicity  of  Native  marriages  is  a  complete  security 
against  force.  As  regards  fraud,  the  select  committee  would 
have  had  a  difficult  undertaking  in  hand  if  it  had  tried  to 
define  the  kind  of  fraud  which  should  invalidate  a  marriasre. 
Absolute  personation  of  one  man  by  another,  which  is  the 
only  fraud  indicated  in  the  Canon  Law  (from  which  the  juris- 
diction has  apparently  descended),  is  practically  impossible  in 
modern  society.  As  to  other  kinds  of  fraud,  take  a  very 
very  strong  case.  If  a  ticket-of-leave  man  comes  to  India 
from  Australia,  and,  concealing  his  antecedents,  marries  a 
European  woman,  is  the  marriage  to  be  set  aside  ?  A  more 
cruel  imposition  can  scarcely  be  imagined,  and  yet  I  appre- 
hend that  modern  ideas  would  require  the  marriage  to  be 
maintained.  The  select  committee,  however,  did  not  wish  to 
take  away  from  the  High  Courts  any  jurisdiction  which  they 
at  present  possess.  If  those  courts  are  ever  called  upon  to 
exercise  it,  they  will  discover  and  apply  for  themselves  the 
proper  existing  limitations. 

Section  21  embodies  a  limited  application  of  a  principle 
which  lawyers  would  gladly  see  engrafted  on  English  law.  It 
is  the  principle  that  marriages  contracted  in  good  faith,  but 
declared  to  be  null,  shall  be  maintained  as  far  as  possible. 
The  section,  which  is  taken  textually  from  the  New  York 
code,  and  resembles  the  provisions  of  the  French  code  and 
the  numerous  systems  descended  from  Roman  law,  permits 
the  children  to  succeed  as  legitimate  to  the  property  of  the 
party  competent  to  marry,  and  thus  relieves  them,  pro  ttDito^ 
from  the  stigma  of  illegitimacy. 


no  SPEECHES   OF   SIR   HENRY   MAINE 

On  sections  56  and  57  it  is  merely  necessary  to  remark 
that  this  legislature  has,  strictly  speaking,  no  power  to  limit 
the  appeal  to  Her  Majesty  in  Council.  Practically,  however, 
it  is  found  that  the  Privy  Council  will  respect  the  limitation 
imposed  by  local  legislatures  on  appeal,  when  such  limita- 
tions are  reasonable.  Section  57  permits  the  parties  whose 
marriage  has  been  dissolved  to  remarry  if  no  appeal  has  been 
presented  to  the  Privy  Council.  But  theoretically  it  is  con- 
ceivable that  an  appeal  might  be  presented  after  six  months. 
There  is  but  little  doubt,  however,  that  the  Privy  Council 
would  maintain  the  restrictions  of  the  Bill  under  its  own 
rules. 

I  now  return  to  section  10,  of  which  I  have  postponed  the 
consideration  for  reasons  which  the  Council  will  have  divined. 
The  section,  with  the  exception  of  the  clause  on  which  I  have 
already  commented,  is  taken  from  the  English  statute,  and 
prescribes  the  grounds  of  divorce  exactly  as  they  are  pre- 
scribed in  English  law.  The  Chief  Justice  of  the  High  Court  of 
Bengal  has,  however,  submitted  a  minute  in  which  he  ear- 
nestly argues  that  the  grounds  of  divorce  should  be  enlarged, 
and  that  a  woman  should  be  allowed  to  obtain  a  divorce  for 
the  simple  adultery  of  her  husband,  or,  if  that  cannot  be 
allowed,  for  his  adultery  coupled  with  such  acts  as,  in  the 
judgment  of  the  court,  render  it  improbable  that  the  wife 
will  ever  be  reconciled  to  her  husband.  As  the  members  of 
Council  have  doubtless  read  the  paper  with  all  the  care 
demanded  by  the  eminent  authority  of  the  writer,  I  will  not 
read  it  at  length,  but  will  give  shortly  the  substance  of  the 
several  paragraphs.  Sir  Barnes  Peacock  states  his  opinion  to 
be,  that  he  does  not  think  it  either  just  or  politic  to  allow  a 
dissolution  of  marriage  for  adultery  of  the  wife,  and  not  to 
allow  it  to  the  wife  for  adultery  of  the  husband,  however  fla- 
grant and  however  open,  and  however  often  repeated,  provided 
it  be  not  incestuous.  He  points  out  that  this  is  not  only  his 
opinion,  but  that  of  many  lawyers,  jurists,  men  of  the  world, 
and  legislators.  He  remarks  on  the  inconsistency  of  placing 
the  sexes  on  equal  terms  as  regards  judicial  separation,  but 
not  as  regards  divorce.  He  cites  a  dictum,  that  separations 
without  divorces  a  vinculo  either  condemn  to  celibacy  or  lead 


DIVORCE  I  I  I 

to  illicit  connection.     He  quotes  a  contention  to  that  effect 
in  the  Marquis  of  Northampton's  case,  reported  by  Bishop 
Burnet,  and  a  similar  argument  used  in  Lord  Rous's  case.    He 
appeals  to  an  argument   of  Lord  Thurlovv  in   Mrs.    Adding- 
ton's  case  that,  under  the  Mosaic  institutions  and  the  Gospel, 
a  woman  might  be  put  away  for  adultery,  and   might  have 
similar  redress  against  her  husband.     He  next  quotes  Lord 
Eldon's  statement  that  a  wife  had  as  good  a  right  as  a  hus- 
band to  relief  in  cases  of  this  description.     This  statement 
was  made  in  Mr.  Moffatt's  case,  which  was  certainly  one  of 
extraordinary    and  cynical  depravity  in  the  husband.     The 
lords,  indeed,  refused  the  divorce  by  a  majority  of  sixteen  to 
nine,  but  Sir  Barnes  Peacock  observes  that  it  would  be  pain- 
ful to  the  judges  to  have  to  refuse  a  decree  to  the  wife  under 
similar  circumstances,  and   that  the   vote  of  the  Peers  could 
not  change  the  principle.     The  Chief  Justice  further  observes 
that  the  House  of  Lords  had  a  discretion  which  is  not  left  to 
the  court  under  the  Bill.     He  argues  that,  in  a  religious  point 
of  view,  both  acts  of  adultery  are  equally  criminal,  and  both 
are  alike  breaches  of  the  marriage  vow  if  looked  at  merely  as 
a  civil  contract.    '  A  man,'  he  remarks,  '  may  live  with  another 
woman  in  an  open  and  notorious  state  of  adultery,  revolting 
to  his  wife  and  revolting  to  society,  yet  his  wife  will  not  be 
able  to  obtain  a  dissolution  on  account  of  the  adultery  alone 
unless  it  be  incestuous.'     Sir  Barnes  Peacock  then  shows  that 
Lord  Brougham,  who  spoke  and  voted  against  Mr.   Moffatt's 
Bill,  had  apparently  changed  his  mind   in    1838.     Lastly,  in 
citing  Mr.  Battersby's  case.  Sir  B.  Peacock  remarks  that  the 
husband  had  committed  bigamy  with  his  paramour,  and  his 
conduct  was  in  other  respects  most  atrocious.     '  That  case,' 
he  adds, '  is,  I  presume,  the  origin  of  the  words  in  the  English 
Act,  followed  in  section  10  of  the  present  Bill,  "or  of  bigamy 
with  adultery." '      I  do  not  at  all  understand  how  the  bigamy 
strengthens  the   case   of  the  wife   for   divorce.      It  was  said, 
'  How  could  a  virtuous  wnfe  return  to  the  embraces  of  such  a 
man  as  Battersby  ?'      In  Battersby's  case,  however,  it  was  not 
the  bigamy  which  prevented  such  return. 

It  will  be  observed  by  the  Council  that  these  arguments  of 
the  Chief  Justice  are  all  of  a  moral  nature,  and  if  I  were  com- 


112  SPEECHES   OF   SIR   HENRY    MAINE 

pelled  to  answer  them  by  arguments  of  the  same  character, 
I  freely  admit  I  should  have  much  difficulty  in  doing  so. 
Doubtless  there  were  members  of  the  committee  who  denied 
absolutely  that  there  was  any  real  equality  between  the  sexes 
in  regard  to  this  matter.  But,  for  myself,  there  is  no  direct 
answer  to  much  that  is  urged  by  Sir  Barnes  Peacock,  which  is 
thoroughly  satisfactory  to  my  mind.  The  difficulties  which  I 
feel  in  regard  to  his  proposal  are  difficulties  arising  out  of  con- 
siderations of  expediency,  of  the  peculiar  position  of  European 
society  in  India,  and  of  the  relation  of  this  Council  to  the 
British  Parliament.  I  cannot  help  asking  myself,  in  the  first 
place,  what  will  be  the  view  taken  by  English  courts  of  our 
new  system  of  divorce,  if  we  introduce  grounds  of  divorce 
wholly  unrecognised  at  home.  I  have  already  explained  that 
I  attach  much  importance  to  Dr.  Lushington's  declaration, 
that  English  judges  are  greatly  swayed  by  the  circumstances 
under  which  foreign  divorces  actually  take  place.  Is  there 
not  some  risk  of  our  impairing  the  confidence  of  English 
courts  in  Indian  adjudications,  if  we  write  on  the  face  of  our 
law  that  our  courts  are  occasionally  to  proceed  on  principles 
not  yet  allowed  in  England  .''  In  the  next  place,  I  am  not 
without  fear  that,  by  giving  effect  to  these  suggestions,  we 
might  multiply  facilities  for  connivance  and  collusion  ;  and 
there  is  no  doubt  in  my  mind  that  it  is  the  suspicion  of  con- 
nivance and  collusion  to  which  is  attributable  the  jealousy 
entertained  by  English  courts  of  dissolution  of  English  mar- 
riages under  foreign  decrees.  Take  the  case  of  connivance.  It 
cannot  be  denied  that  the  securities  against  it  provided  by 
the  English  statute  are  very  considerable.  In  order  to  pro- 
cure a  divorce,  a  woman  must  do  that  which  will  for  ever 
exile  her  from  society,  and  a  man  must  couple  his  adultery 
with  acts  which  will  bring  him  under  the  criminal  law,  or 
with  desertion  which  must  take  him  away  from  all  his  ordi- 
nary duties  and  employments,  or  with  cruelty  which,  even  if 
we  can  conceive  the  wife  assenting  to  it,  is  something  from 
which  a  man  of  otherwise  coarse  fibre  w^ill  surely  shrink,  or 
which  he  will  be  loath  to  attribute  to  himself.  Shall  we  not 
be  materially  diminishing  these  securities,  if  we  allow  the 
divorce  to  be    obtained   either   for    simple    adultery,    or    for 


DIVORCE  113 

adultery  coupled  with  such  conduct  as  a  court  may  deem  to 
be  a  bar  to  reconciliation  ?  These  are  difficulties  which  occur 
to  my  mind  ;  but  they  are  not  the  true  reasons  why  I  think  it 
would  be  undesirable  to  carr}-  out  these  earnestly  urged  pro- 
posals of  Sir  B.  Peacock,  much  as  we  may  be  disposed  to 
respect  his  opinion,  and  little  as  we  may  wish  to  establish 
any  inequitable  difference  between  the  sexes. 

I  must  call  the  attention  of  the  Council  to  the  dates  of  the 
authorities  cited  by  the  Chief  Justice.  The  Marquis  of  North- 
ampton's case  occurred  on  January  11,  1548;  Lord  Rous's 
in  1609  ;  Mrs.  Addison's  in  1801  ;  Mrs.  Moffatt's  in  1832, 
and  Mrs.  Battersby's  in  1840.  I  presume,  too,  that,  as  Sir 
B.  Peacock  was  in  India  in  1857,  he  had  formed  his  strong 
opinion  previously  to  that  }'ear.  Can  we  blind  ourselves  to 
the  fact  that,  since  these  authorities  declared  themselves, 
there  has  been  a  great  legislative  ruling  on  the  subject  by 
Parliament?  It  was  in  1857  that  the  first  Divorce  Act  be- 
came law.  It  was  not  as  if  the  question  raised  by  Sir  Barnes 
Peacock  was  not  fairly  raised  in  Parliament.  In  the  House 
of  Lords,  Lord  Lyndhurst  urged  the  same  arguments  at  great 
length,  and  in  the  House  of  Commons  the  question  was 
raised  by  a  long  series  of  amendments.  In  the  discussion  on 
one  of  them,  the  Lord  Advocate  opposed  the  Bill  of  his  own 
Government,  and  argued  for  that  equality  of  the  sexes  which 
is  recognised  in  his  own  country,  Scotland.  It  cannot  be 
denied  that  the  view  of  the  Chief  Justice  was  fairly  put 
before  Parliament,  and  decisively  overruled.  Whatever  ma}- 
be  thought  in  general  of  the  expression  '  wisdom  of  Parlia- 
ment,' it  seems  to  me  more  than  a  mere  commonplace  when 
an  English  social  question  is  at  stake,  and  I  think  it  would 
be  altogether  out  of  place  that  this  Council,  which  is  a  cre- 
ation of  Parliament,  should  set  aside  its  authority  in  a  matter 
which  is  practically  the  same  in  England  as  in  India,  and  is 
governed  by  the  same  considerations  in  its  effect  upon 
English  society  and  on  Indian,  which  is  a  mere  outwork  of 
English  society.  There  is  something  further  to  be  urged. 
The  measure  for  India,  contemplated  during  the  Parlia- 
mentary debates,  was  a  measure  corresponding  with  the 
English  enactment.     It  was  the  English  measure  which  was 


114  SPEECHES   OF   SIR   HENRY    MAINE 

recommended  to  us  by  the  Secretary  of  State,  which  was 
framed  by  Sir  H.  Harington,  and  which  was  introduced  by 
me  into  the  Council.  Throughout,  it  has  been  recom- 
mended, and  probably  supported,  on  the  authority  of 
English  precedent.  If  the  question  had  been  reopened  on 
first  principles,  how  do  we  know  that  the  Bill  would  have 
made  any  progress  at  all  ?  One,  at  least,  of  the  members  of 
Council  in  charge  of  the  Bill,  Sir  H.  Harington,  held  very 
strict  ideas  on  the  subject  of  divorce,  and  perhaps  would  have 
argued  for  the  absolute  indissolubility  of  marriage  if  he  had 
thought  it  open  to  him  to  do  so.  I  am  not  sure  that,  but  for 
the  authority  of  Parliament,  the  measure  would  have  reached 
the  present  stage,  and  I  am  not  sure  that,  but  for  that  autho- 
rity, it  would  even  now  become  law. 


EMIGRATION 

February  3,  1864. 

In  1864  the  law  relating  to  the  emigration  of  Native  labourers  was 
contained  in  no  less  than  seventeen  Acts,  besides  Acts  sanctioning 
French  treaties  on  the  subject,  and  the  primary  object  of  the  Bill  to 
which  the  following  speech  relates  was  to  consolidate  those  seventeen 
Acts.  It  was  the  first  of  many  consolidating  measures  passed  during 
the  tenure  of  office  of  Mr.  Maine  and  his  three  successors,  and  rescued 
for  a  time  the  Indian  Statute  Book  from  the  confusion  and  diffuse- 
ness  into  which  it  is  now  again  unfortunately  falling. '  The  Bill  re- 
ferred to  by  Mr.  Maine  became  law  as  x\ct  XIII.  of  1864.  It  was 
superseded  by  Act  VII.  of  1871,  and  this  by  Act  XXI.  of  1883, 
amended  by  Act  XVIII.  of  1890,  the  present  law  on  the  subject. 

Mr.  Maine,  in  moving  that  the  Bill  to  consolidate  and 
amend  the  laws  relating  to  the  emigration  of  Native  labourers 
should  be  referred  to  a  select  committee  and  reported  on  in 
three  weeks,  said  that  this  was  one  of  the  Bills  which  was 
introduced  under  the  19th  rule  for  the  conduct  of  business, 
which  rule  empowered  the  Viceroy  to  give  permission  for  a 
Bill  to  be  brought  in  without  the  consent  of  the  Council 
being  first  obtained.     The  rule  was  rather  sharply  criticised 

'   For  example,  the  law  relating  to       scattered  through  ten  Acts  and  a  lengthy 
the  small  subject  of  Court-fees  is  now       notification. 


KMK'.KATION  II5 

out  of  doors  at  the  time  of  its  promulgation,  but  Lord  Elgin 
defended  it,  and  experience  had  shown  the  advantages  arising 
from  it.  It  enabled  the  framer  of  a  Bill  to  bring  his  measure 
before  the  public,  not  only  much  earlier  than  would  otherwise 
be  possible,  but  at  a  time  when  public  attention  w^as  not  dis- 
tracted by  a  multiplicity  of  legislative  business  ;  and  for  his 
own  part  he  (Mr.  Maine)  gladly  testified  to  its  wisdom,  for  he 
could  not  overrate  the  advantages  of  the  criticism  on  the 
Bills  bearing  his  name,  which  had  reached  him  not  only  from 
the  Press,  but  also  from  numerous  private  persons.  The 
subject  of  the  Bill  had  been  long  under  the  consideration  of 
the  Government,  and  how  urgently  the  consolidation  of  the 
emigration  laws  was  needed  would  be  seen  by  the  members 
of  Council  if  they  would  look  at  the  2nd  section,  which  as  the 
Bill  stood  was  the  repealing  section.  They  would  find  that 
the  law  relating  to  Native  labourers  had  at  present  to  be  col- 
lected from  seventeen  Acts,  not  to  speak  of  Acts  sanctioning 
French  treaties — which  Acts  the  Council  was  not  at  liberty  to 
repeal — and  rules  of  general  law  which  had  an  incidental 
bearing  on  the  subject. 

So  far  as  the  Bill  was  a  consolidating  Bill,  there  were  only 
two  points  which  the  Council  should  be  specially  invited  to 
notice.  One  was  that  the  previous  legislation  on  the  sub- 
ject had  been  frequently  modified  as  it  proceeded,  and  that 
the  present  Bill  embodied  the  latest  and  most  improved  stage 
of  legislation.  The  second  was  that  the  Bill  contained  much 
that,  though  not  found  in  any  Act,  was  still  old  law.  Through 
the  exercise  of  the  power  given  to  the  Governor  General  in 
Council  to  regulate  the  subsidiary  parts  of  the  machinery  of 
emigration,  a  code  of  rules  had  been  formed  with  regard  to  the 
protectors  of  emigrants,  which  was  as  much  permanent  law 
as  if  it  had  proceeded  from  direct  legislation,  and  these  rules 
would  be  found  in  the  Bill.  Again,  regarding  the  Bill  as  an 
amending  Bill,  there  was  no  doubt  that  the  law  of  India  in 
relation  to  the  emigration  of  Native  labourers  did  require 
change,  at  least  if  he  (Mr.  Maine)  might  judge  from  the  enor- 
mous mass  of  papers  that  had  reached  him  when  he  first 
addressed  himself  to  the  subject — papers  containing  sugges- 
tions and  complaints  from  the  Secretary  of  State,  from  local 


Il6  SPEECHES   OF   SIR    HENRY   MAINE 

governments,  from  foreign  powers,  and  perhaps  more  than 
all  from  benevolent  persons  interested  in  the  emigration  of 
coolies.  The  Bill,  founded  on  these  communications,  proposed 
a  great  variety  of  alterations  in  the  existing  law,  but  most  of 
them  were  better  fitted  for  discussion  in  committee  than  in 
the  full  Council.  However,  there  was  one  class  of  amend- 
ments to  which  he  would  invite  attention,  because  the  reforms 
which  they  carried  with  them  amounted  to  a  total  change  of 
system.  Every  one  present  had  probably  a  general  idea  of 
the  present  mode  of  recruiting  labourers  in  India  for  foreign 
parts  ;  they  were  collected  over  large  areas  of  the  country  by 
recruiters,  who  were  paid  a  percentage  at  the  expense  of  the 
colony  or  foreign  power  seeking  to  enlarge  its  labour  market. 
They  were  then  brought  in  bodies  or  gangs  to  the  port  of 
embarkation,  which  was  always  a  presidency  town,  and  then 
came  into  play  an  elaborate  system  of  checks  and  precau- 
tions, designed — and  often  successfully  designed — to  make 
provision  for  the  emigrant's  proper  treatment  during  the  voy- 
age, to  ascertain  his  state  of  health,  and  to  establish  his  full 
comprehension  of  the  contract  into  which  he  had  entered. 
The  weak  point  of  the  system  was  the  stage  of  recruiting  at 
which  the  labourer  came  into  contact  with  it.  The  coolie 
when  he  reached  the  seaboard  was  already  committed — he 
was  embarked  in  the  adventure— he  had  accomplished  what 
was  probably  the  most  troublesome  stage  of  the  journey  ;  he 
was  not  likely  to  listen  to  advice  or  dissuasion  at  that  time. 
It  was,  moreover,  said  that  the  protector  of  emigrants  some- 
times failed  to  make  himself  understood  by  the  intending 
emigrants,  swept  together  as  they  were  from  the  multi- 
tudinous races  of  India,  not  so  much  from  ignorance  of  their 
language  as  from  ignorance  of  their  habits  ;  for  he  (Mr. 
Maine)  had  heard — though  it  was  a  point  on  which  he  could 
have  no  personal  knowledge — that  to  make  oneself  compre- 
hended by  the  ruder  natives  of  this  country  it  was  sometimes 
quite  as  necessary  to  understand  their  usage  of  address  as 
their  tongue.  At  all  events,  it  was  obvious  that  the  greater 
part  of  the  complaints  and  suggestions  which  he  had  described 
applied  to  one  or  other  of  the  consequences  of  this  system. 
It  was  not  easy  to  meet  all  the  difficulties,  but  the  task  had 


EMIGRATION  11/ 

been  greatly  facilitated  by  the  preparation  and  enactment  in 
the  Council  by  his  honourable  friend  the  Lieutenant  Governor 
of  a  most  carefully  matured  and  thoroughly  considered  measure 
relating  to  the  recruitment  of  labourers  for  Assam  and  the  tea 
districts.  His  (Mr.  Maine's)  Bill  would  follow  closely  the 
Bill  of  Bengal,  with  so  much  alteration  as  would  effect  its 
application  to  recruiting  for  foreign  parts.  The  principle  of 
it  was  simply  the  production  by  the  recruiter  of  intending 
emigrants  with  as  little  delay  as  possible  before  the  magis- 
trate of  the  district,  who  would  interrogate  them  as  to  their 
comprehension  of  the  engagement,  and  give  them  every 
information  and  advice.  He  imagined  it  might  fairly  be  said 
that  the  magistrate  stood  in  a  sort  of  patriarchal  relation  to 
the  people.  He  would  thoroughly  understand  their  language 
and  customs,  and,  more  than  most  people,  he  would  be  able 
to  detect  false  pretences  on  the  part  of  the  recruiter,  and  to 
discover  whether  any  man  intended  to  emigrate  from  a  bad  or 
an  illegal  motive  —  as,  for  instance,  the  desertion  of  his  family. 
If  it  was  clear  that  the  labourer  wished  to  emigrate,  the 
magistrate  would  register  him,  and  permit  his  removal  to  the 
seaboard  ;  if,  after  so  thorough  an  inquiry,  the  labourer  still 
retained  his  intention  of  going  over  sea,  he  (Mr.  Maine)  con- 
ceived that  no  Government  on  earth  had  a  right  to  prevent 
him.  One  advantage  of  the  new  plan  was  that  it  enabled 
him  (Mr.  Maine)  greatly  to  simplify  the  machinery  which  was 
under  the  superintendence  of  the  Protector  of  Emigrants  at  the 
presidency  towns  ;  for,  the  free  will  of  the  labourer  having 
been  placed  beyond  doubt  up  country,  all  that  remained  was 
to  ascertain  the  state  of  his  health  and  to  make  provision  for 
his  comfort  during  his  passage  to  his  destination.  These  last- 
mentioned  points  were  regulated  by  many  sections  of  the  Bill. 
There  was  only  one  other  amendment  to  which  he  would 
call  the  attention  of  the  Council.  Section  V.,  after  reciting 
the  places  to  which  emigration  was  now  lawful,  provided  that 
the  Governor  General  in  Executive  Council  might  declare  to 
what  other  places  it  should  be  legalised.  The  present  rule 
was  that  emigration  was  unlawful  by  statute  ;  but  this  prohi- 
bition was  systematically  relaxed  when  any  colony  or  depen- 
dency of  a  foreign  power  established  that  it  had  made  proper 


Il8  SPEECHES   OF   SIR   HENRY   MAINE 

arrangements  for  the  reception  of  coolies.  It  was  now  pro- 
posed that  when  this  Bill  had  once  placed  emigration  on  a 
satisfactory  footing,  the  Governor  General  in  Executive 
Council  should  decide  to  what  new  places  it  should  be  per- 
mitted. He  (Mr.  Maine)  admitted  that  words  ought  to  be 
inserted  in  committee  throwing  a  positive  legal  obligation  on 
the  Executive  Government  to  see  that  places  seeking  to  obtain 
Indian  labourers  prepared  for  their  safety  and  comfort  by 
proper  laws  and  arrangements,  but  with  that  exception  he 
thought  there  were  urgent  reasons  for  leaving  the  section  in 
its  present  form.  First,  there  were  technical  reasons.  Ac- 
cording to  the  practice  of  the  British  Parliament,  whenever  a 
number  of  laws  were  consolidated  into  a  single  statute,  they 
were  always  so  consolidated  as  not  to  leave  room  for  further 
legislation  :  any  discretion  as  to  carrying  out  or  extending  the 
Act  was  invariably  confided  to  Her  Majesty  in  Council,  and 
never  reserved  to  the  legislature.  The  committees  of  the 
Privy  Council,  and  in  particular  that  great  committee  known 
as  the  Board  of  Trade,  might  be  said  to  exist  for  the  purpose 
of  putting  into  execution  the  various  important  consolida- 
tion Acts  which  had  been  passed  of  late  years,  and  of  gradu- 
ally bringing  fresh  cases  within  their  sphere  of  operation.  The 
reason  he  thought  obvious  :  legislation  was  not  a  good  in 
itself,  it  was  only  a  good  as  leading  up  to  good  executive 
government,  and  it  seemed  to  him  a  miscarriage  of  legislative 
art  to  frame  a  statute  purporting  and  pretending  to  contain 
the  whole  law  which  should  yet  contain  a  provision  for 
future  legislation.  After  citing  various  Acts,  Mr.  Maine 
instanced  i6  &  17  Vic.  cap.  107  (the  Customs'  Consolidation 
Act),  which,  he  said,  by  sections  324  and  325,  empowered  the 
Executive  Government  of  England,  on  ascertaining  certain 
facts  as  to  the  laws  of  foreign  countries,  to  overturn, /re  tanto, 
the  very  principle  and  basis  of  our  commercial  policy.  This 
was  an  illustration  something  more  than  in  point,  because 
his  (Mr.  Maine's)  provision  only  empowered  the  Executive 
Government  of  India  to  carry  further,  under  restrictions,- 
principles  which  the  Indian  legislature  had  sanctioned  in 
twenty  statutes.  But  he  should  be  sorry  the  Council  should 
think  he  had  merely  technical  reasons  for  framing  the  section. 


KM  IC.  RATION  II9 

in  this  form.  There  were  reasons  of  substance,  and  most 
urgent  reasons.  The  debate  of  last  year  on  the  St.  Croix 
Bill '  showed  that  the  whole  Council  was  alive  to  one  danger 
which  threatened  India.  To  the  old  and  false  belief  that 
India  was  a  country  overflowing  with  wealth  had  succeeded 
the  new  and  equally  false  theory  that  it  was  a  country  teem- 
ing with  men,  and  whenever  benevolent  statesmen  in  Europe 
were  shocked  by  a  revival  of  Negro  slavery  in  any  part  of  the 
world,  it  was  obvious  that  their  first  thought  was  to  replace 
the  demand  for  Negroes  by  a  draft  on  the  population  of  this 
country.  Now  India  lay  outside  the  circle  of  European 
diplomacy,  and  let  the  Council  suppose  Her  Majesty  to  be 
advised  at  some  future  time  to  agree  to  a  treaty  containing 
laxer  and  looser  stipulations  than  those  of  the  Bill,  it  would 
become  the  duty  of  the  Executive  Government  to  submit  a 
Bill  carrying  out  the  treaty  to  the  legislature — that  was 
inevitable.  What  would  that  Council  do  ?  Insist  on  modifi- 
cations of  the  treaty  ?  That  was  improbable.  On  the  whole 
and  in  the  long  run,  it  would  turn  out  to  be  under  the  influ- 
ence of  the  same  feelings  which  actuated  the  English  Parlia- 
ment, and  produced  in  it  so  strong  a  repugnance  to  inter- 
fering with  the  personal  acts  of  the  Sovereign,  that  the 
instances  where  even  Parliament  had  refused  to  carry  out  the 
obligations  of  a  treaty  might  almost  be  counted  on  one  hand. 
He  believed,  therefore,  that  the  Council  would  greatly 
strengthen  the  hands  of  the  executive  if  it  enabled  it  to  say  to 
foreign  powers — '  These  are  our  conditions.  If  you  wish  to 
have  emigrants,  you  must  have  them  on  our  terms.  It  is  not 
a  matter  for  legislation  at  all ;  this  is  the  fixed  law  of  India, 
which  is  antecedent  to,  and  presupposed  in,  every  inter- 
national engagement.' 

He  did  not  suppose  that,  though  the  sections  which 
remained  were  doubtless  susceptible  of  considerable  improve- 
ment in  committee,  any  member  of  the  Council  would  enter- 
tain objections  to  them  of  principle.  He  thought  that  the 
Bill  would  be  found  to  be  a  fair  compromise  between  the 
opposing  sets  of  considerations  which  must  make  themselves 

'  A    Bill  relating  to  emigration  to       Mr.    Maine  introduced  on  January  7, 
the  Danish  colony  of  St.  Croix,  which       1S63. 


I20  SPEECHES   OF   SIR    HENRY   MAINE 

felt  by  everybody  who  addressed  himself  to  the  subject  of 
emigration.  On  the  one  hand,  he  could  not  conceive  that 
anybody  would  deny  the  right — what  some  persons  would 
call  the  natural  right — of  every  native  of  India  to  go  where 
he  pleased  for  the  sake  of  bettering  his  condition.  Even 
if  he  thought  that  proposition  disputable,  he  considered 
that  the  English  in  India  were  estopped  from  denying  it. 
That  we,  who  were  thousands  of  miles  from  our  home,  who 
had  come  over  half  the  world  to  embark  our  fortunes  in  India, 
should  proceed  to  deny  to  the  natives  of  India  the  right  to  go 
where  they  pleased  to  procure  better  remuneration  for  their 
labour,  would  be  conduct  which  the  world  at  large  would 
regard,  to  put  it  gentl}^,  as  the  most  extraordinary  of  English 
eccentricities.  But,  on  the  other  hand,  nobody  would  really 
wish  that  the  natives  of  India  should  emigrate  in  large  num- 
bers, though  he  might  not  feel  himself  at  liberty  to  refuse 
them  the  liberty  of  emigrating.  We  knew  how  ignorant  and 
helpless  they  were — how  readily  they  were  deceived,  and  how 
easily  oppressed.  And  we  might  not  unnaturally  suspect 
that  those  who  were  intended  to  be  the  successors  of  the 
Negroes  might  come  in  for  more  of  the  inheritance  than  was 
quite  desirable.  Moreover,  we  knew  that  in  the  existing 
state  of  India  there  was,  or  soon  would  be,  room  enough  and 
work  enough  for  every  pair  of  arms  which  the  country  con- 
tained. If  the  Bill  erred  at  all,  it  erred  in  giving  effect  to 
these  last-mentioned  views  ;  it  erred  on  the  side  of  stringency  ; 
but  on  the  whole,  considering  the  character  of  the  natives  of 
those  parts  of  India  which  were  the  theatre  of  recruiting 
operations,  he  did  not  think  that  it  unduly  shackled  their 
liberty  of  action. 

WHIPPING 

February  17,  1864. 

The  Pennl  Code  as  originally  framed  and  published  by  the  Indian 
Law  Commissioners  did  not  include  flogging  in  the  list  of  punish- 
ments. The  Code  remained  in  abeyance  for  upwards  of  twenty 
years,  and  when  it  became  law  in  1862  the  omission  was  not  supplied, 
owing  to  a  desire  that  local  officers  and  the  public  should  have  an 
opportunity  of  expressing  their  opinions  on  the  subject.  The  result 
was  an  enormous  increase  in  the  gaol  population  and  great  addi- 


WIIIITING  121 

tional  cost  to  the  State.  The  chief  Local  Governments  reported 
strongly  in  favour  of  retaining  flogging  as  a  punishment,  and  a  Bill 
to  authorise  whipping  in  certain  cases  was  accordingly  introduced  by 
Mr.  (afterwards  Sir  Cecil)  Beadon.  On  the  introduction  of  the  Bill 
Sir  Charles  Trevelyan  opposed  it  with  the  ordinary  objections.  Mr. 
Maine  replied  in  the  following  speech,  and  the  Bill  became  law 
as  Act  VI.  of  1864.  It  may  be  added  that  the  fullest  safeguards 
against  the  abuse  of  the  punishment  are  contained  in  the  Code  of 
Criminal  Procedure,  sees.  390-395,  and  that  the  following  persons 
are  expressly  exempted,  namely,  (i)  females,  (2)  males  sentenced  to 
death,  transportation,  penal  servitude,  or  imprisonment  for  more  than 
five  years,  and  (3)  males  whom  the  Court  considers  to  be  more  than 
forty-five  years  of  age. 

Mr.  Maine  agreed  with  his  honourable  friend  that  there 
were  some  grave  objections  to  the  punishment  of  flogging, 
although  he  was  unfortunate  in  not  being  able  to  appreciate  the 
precise  objections  which  Sir  Charles  Trevelyan  had  pressed  on 
the  Council.  One  defect  which  he  (Mr.  Maine)  perceived  had 
not  been  mentioned  by  his  honourable  friend,  viz.  that  flogging 
was  incapable  of  remission.  Once  administered,  it  could  not 
be  taken  back,  whatever  light  further  inquiry  might  cast  on 
the  convict's  guilt.  Mr.  Maine  also  acknowledged  that  there 
was  great  force  in  Sir  Charles  Trevelyan's  remarks  on  the 
practical  inequality  of  the  punishment.  But  after  all  draw- 
backs had  been  brought  into  the  account,  he  could  not  agree 
in  his  honourable  friend's  conclusion.  First  among  such  of 
Sir  Charles  Trevelyan's  objections  as  he  did  not  concur  in,  he 
would  take  one  which  was  put  forward  rather  modestly,  but 
of  which  everybody  must  see  the  point.  His  honourable 
friend  had  suggested  that  under  the  Bill  a  junior  magistrate 
in  the  Mufassal  might  order  a  European  to  be  flogged.  That 
was  a  mistake.  The  Bill  took  away  no  privilege  which 
Europeans  at  present  possessed.  European  criminals  would 
still  be  brought  down  to  the  presidency  towns,  and  if  the  High 
Court  or  a  Calcutta  magistrate  ordered  a  European  who  had 
been  guilty  of  any  of  the  offences  mentioned  in  the  Bill  to  be 
flogged,  there  was  not  the  smallest  reason  for  thinking  that  the 
European  community  would  object. 

As    to    Sir  Charles   Trevelyan's    assertion   that    flogging 
brutalised  the  criminal,  he  (Mr.  Maine)  had  heard  it  so  many 


122  SPEECHES   OF   SIR   HENRY   MAINE 

times,  not  only  from  his  honourable  friend  but  from  many 
other  persons  for  whom  he  had  the  greatest  respect,  that  he 
must  suppose  there  was  something  in  it  ;  but  for  his  part  he 
must  acknowledge  that  he  did  not  even  understand  what  it 
meant.  What  was  intended  when  it  was  said  that  whipping 
brutalised  ?  Was  it,  that  it  appealed  to  the  offender's  animal 
nature,  as  distinguished  from  his  moral  nature?  that  it  caused, 
in  short,  physical  pain  ?  Why,  every  punishment  deserving 
the  name  inflicted  physical  pain.  If  you  shut  a  man  up  in 
gaol  who  was  used  to  the  open  air ;  if  you  deprived  him  of 
stimulants  when  he  was  habituated  to  them  ;  if  you  made  him 
work  when  he  was  accustomed  to  be  idle  :  in  all  these  cases 
you  inflicted  physical  pain,  and  pain  sometimes  even  severer 
than  the  pain  of  a  flogging.  Some  persons,  including  appa- 
rently his  honourable  friend,  but  certainly  the  authors  of  a 
petition  which  had  been  circulated,  appeared  to  forget  that 
when  you  sentenced  a  criminal  to  punishment  you  delibe- 
rately made  up  your  mind  to  render  him  extremely  uncom- 
fortable ;  and  for  his  part,  Mr.  Maine  could  not  the  least 
understand  why  one  form  or  degree  of  physical  pain  should 
brutalise  more  than  another. 

His  honourable  friend  further  condemned  flogging  as  a 
disgraceful  punishment.  He  (Mr.  Maine)  was  afraid  he  should 
shock  his  honourable  friend,  but  he  was  bound  to  say  that, 
considering  the  present  state  of  the  theory  of  punishment,  it 
was  to  some  extent  a  recommendation  of  any  punishment  that 
it  was  disgraceful.  For  (as  he  supposed)  there  occurred  in 
India  the  same  perplexity  which  occurred  in  England — and 
which  had  gone  far  to  disturb  what  were  once  believed  to  be 
the  first  principles  of  a  penal  system — that  criminals  were 
found  by  experience  not  to  commit  crimes  singly  and  by 
isolated  acts  ;  they  had  a  tendency  to  form  themselves  into  a 
class,  with  rules  and  maxims  and  a  code  of  honour  of  their 
own.  The  very  difficulty  was  that  ordinary  punishments 
were  not  felt  by  them  to  be  disgraceful,  and  if,  therefore,  a 
punishment  could  be  discovered  which  roused  under  all  cir- 
cumstances the  sense  of  shame,  that  punishment  would  have 
a  value  of  its  own. 

After    all    deductions    had    been    made    from    the    penal 


WHIPPING  123 

efficacy  of  flogging,  there  still  remained  one  immense  advan- 
tage, that  it  was  the  most  strongly  deterrent  of  known 
punishments — so  deterrent,  indeed,  that  the  legislator  was 
under  a  constant  temptation  to  employ  it  without  regard  to 
counterbalancing  disadvantages.  His  honourable  friend  had 
strangely  argued  that  the  English  examples  of  Whipping 
Acts  were  not  in  point,  because  no  flogging  had  been  ad- 
ministered under  them.  The  truth  was,  that  the  terror  of 
the  law  had  done  its  work  thoroughly  ;  offenders  were  de- 
terred and  offences  ceased. 

He  (Mr.  Maine)  would  never  advocate  the  infliction  of 
whipping  except  sparingly  and  under  careful  restrictions  ; 
but  what  he  did  not  comprehend  was  that  this  Council  should 
oppose  itself  to  the  unanimous  demand  of  the  Local  Govern- 
ments. Such  a  refusal  could  only  be  based,  as  his  honourable 
friend's  argument  showed,  on  certain  abstract  and  speculative 
theories  concerning  punishment,  and  it  was  only  fair  to  see 
what  results  those  theories  had  given,  so  far  as  they  had 
hitherto  been  permitted  to  govern  practice.  His  honourable 
friend  had  pressed  the  Council  with  the  authority  of  Lord 
William  Bentinck,  Lord  Macaulay,  and  Mr.  Anderson.  Those 
were  great  names  ;  but  there  was  an  authority  greater  than  the 
authority  of  names,  and  that  was  the  authority  of  facts.  Now 
the  fact  was,  that  what  he  trusted  he  might  call  without  offence 
the  sentimental  theory  of  punishment  had  all  but  collapsed  ; 
if  it  had  not  utterly  broken  down,  it  had  at  all  events  been 
rudely  shaken.  The  theory  began  (not  long  before  the  time 
when  the  Law  Commissioners  reported)  in  a  natural  reaction 
against  the  savage  punishments  employed  at  the  beginning  of 
the  century,  and  it  was  founded  on  the  assumption  (which  was 
only  very  partially  true)  that  all  punishment  should  be  directed 
towards  the  reformation  of  the  offender.  If  ever  a  theory  had 
been  thoroughly  tested,  it  was  this  theory  during  its  trial  in 
England.  It  was  impossible  to  say  what  sums  had  not  been 
lavished  in  England  on  the  construction  of  gaols  on  ideal  princi- 
ples, and  on  an  internal  discipline  adjusted  to  some  theor}'. 
Perhaps  his  honourable  friend  scarcely  reflected  what  he  was 
promising  when  he  promised  that  Indian  gaols  should  be  im- 
proved up  to  the  English  standard,  and  reformatories  established 


124  SPEECHES   OF   SIR    HENRY   MAINE 

throughout  the  country:  The  outlay  in  England  on  gaols, 
gaol-discipline,  and  reformatories  was  little  known,  because 
the  money  came  out  of  local,  and  did  not  appear  in  the  public 
accounts  ;  but  he  believed  that  the  sums  expended  had  been  al- 
most fabulous.  What  was  the  result  ?  Twenty  or  thirty  years 
of  costly  experiments  had  simply  brought  out  the  fact,  that  by 
looking  too  exclusively  to  the  reformatory  side  of  punishment 
you  had  not  only  not  reformed  your  criminals,  but  had  actu- 
ally increased  the  criminal  class.  It  was  practically  found 
that,  by  taking  all  the  sting  out  of  punishment,  by  leaving  the 
criminal  nothing  but  the  recollection  of  a  rather  dull  and 
monotonous  episode  in  his  life,  you  had  increased  the  offender's 
temptations  without  improving  his  morality  :  you  were  actu- 
ally adding  to  that  community  within  the  community  which 
lived  by  crime.  The  truth  which  no  candid  man  who  had 
English  experience  to  guide  him  would  deny  was  that,  by 
adjusting  gaol  discipline  to  one  special  principle,  you  had  cer- 
tainly not  reformed  your  criminals,  and  probably  had  encou- 
raged them.  And  if  that  were  so  in  England,  where  you  had 
men  of  the  same  race  and  nominally  of  the  same  faith  as  your- 
selves to  operate  upon,  what  certain  results  could  you  expect 
in  India,  where  a  wholly  different  set  of  usages  and  rules  con- 
cerning the  conduct  of  life  prevailed  from  those  which  obtained 
at  home  ?  The  great  agent  of  reformatory  discipline  in  English 
gaols  was  the  chaplain.  But  what  counterpart  had  the  chap- 
lain in  an  Indian  gaol  .-^  He  doubted  whether  his  honourable 
friend  had  followed  the  most  recent  current  of  English  opinion 
on  these  subjects.  If  any  of  the  Council  had  read  the  reports  of 
the  committees  appointed  last  year  by  the  two  Houses  of  Par- 
liament, and  the  discussions  among  the  county  magistrates 
which  had  arrived  by  the  last  mail  as  to  the  proper  mode  of 
carrying  out  the  recommendations  of  the  committees,  they 
would  see  that  the  formula  which,  after  recent  experience, 
commanded  most  respect  in  England  was  one  which  might 
well  serve  as  the  motto  of  that  Bill — '  Punish  first  ;  reform 
and  instruct  afterwards.'  It  would  be  found  that  the  com- 
mittee of  the  House  of  Lords  on  Prison  Discipline  had 
advised  a  liberal  resort  to  the  crank,  the  treadmill,  and  some- 
thing called  the  shot-drill,  and  he  (Mr.  Maine)  perceived  that 


WHIPPING  125 

in  several  counties  a  contrivance  which  was  in  special  favour 
was  a  species  of  plank-bed,  of  which,  if  he  understood  it  rightly, 
the  peculiar  ingenuity  consisted  in  its  rendering  it  extremely 
difficult  for  the  convict  to  sleep.  He  confessed  that  the  im- 
pression left  on  his  mind  by  the  Parliamentary  reports  and 
county  discussions  was  that  these  noble  lords  and  honourable 
gentlemen  would  have  felt  it  a  great  relief  if  the  authority  of 
such  great  names  as  had  been  quoted  to-day  had  not  pre- 
vented them  for  having  recourse  to  the  simpler,  and  in  his 
(Mr.  Maine's)  eyes  much  more  innocent  and  less  cruel,  expe- 
dient of  a  sound  flogging. 

He  submitted  to  the  Council  that  the  case  was  this  :  all 
theories  on  the  subject  of  punishment  had  more  or  less 
broken  down,  not  finally,  he  hoped,  but  for  the  present. 
We  were  again  at  sea  as  to  first  principles.  Nothing  then 
remained  but  to  take  experience  for  a  guide,  and  here  was 
every  Local  Government  in  India,  every  Government  entrusted 
with  the  direct  administration  of  the  country,  declaring  that 
it  could  not  keep  the  peace  and  tread  down  crime  unless  it 
were  allowed  to  employ  the  punishment  of  whipping.  The 
duty  of  making  laws  in  one  Council  for  all  India  was  onerous 
enough  ;  but  if  they,  sitting  in  one  corner  of  the  country,  were 
deliberately  to  say  to  these  Governments  that  criminals  were  not 
to  be  flogged  because  flogging  might  brutalise  a  Bengali  thief 
or  a  Panjabi  dacoit,  he  must  say  that  they  would  not  only 
incur  a  very  grave  responsibility,  but  be  going  very  close  to  the 
verge  of  absurdity.  And  if  it  were  once  granted  that  whipping, 
though  it  should  be  sparingly  employed  and  carefully  guarded, 
should  nevertheless  not  be  altogether  excluded  from  the  list 
of  punishments,  a  more  innocent  Bill  than  this  could  scarcely 
be  conceived.  Whipping  was  only  for  a  first  offence  to  be  given 
in  substitution  for  other  punishments  :  the  judge  at  his  dis- 
cretion might  order  the  convict  to  be  whipped  and  released, 
thus  saving  him  from  the  contamination  of  a  gaol — contamina- 
tion which  existed  not  only  here,  but  also  in  the  most  elabo- 
rately organised  of  English  gaols.  If  the  offender  were  con- 
victed of  a  second  offence,  then,  as  on  a  fair  assumption  he 
might  be  supposed  to  belong  to  the  criminal  class,  so  that 
nothing  was  gained  by  saving  him   from    the    corruption  of 


126  SPEECHES   OF   SIR    HENRY   MAINE 

imprisonment,  he  might  for  certain  offences  be  flogged  as 
well  as  imprisoned  or  otherwise  punished.  It  appeared  im- 
possible, considering  the  weight  legitimately  due  to  the 
opinions  of  the  Local  Governments,  that  the  Council  should 
reject  so  mild  a  measure  of  concession  to  their  demand. 

OFFICIAL    TRUSTEES 

February  24,  1864. 

The  Bill  referred  to  in  the  following  speech  became  law  as  Act  XVII. 
of  1864,  and  has  worked  satisfactorily.  The  remuneration  allowed  to 
the  official  trustee  is  one-half  per  cent,  on  all  capital  monies  received 
by  him,  one-half  per  cent,  on  all  capital  monies  invested  by  him,  three- 
quarters  per  cent,  on  all  interest  or  dividends  received  by  him,  and 
two-and-a-half  per  cent,  on  all  rents  collected  by  him.  Due  provision 
is  made  for  the  security  of  the  trust-funds  and  the  audit  of  the  official 
trustee's  accounts. 

Mr.  Maine  introduced  the  Bill  to  constitute  an  office  of 
Of^cial  Trustee,  and  moved  that  it  be  referred  to  a  select 
committee,  with  instructions  to  report  in  three  weeks.  He 
said  the  Bill  was  one  of  those  which  had  been  published 
under  the  19th  of  the  Council  rules,  by  order  of  the  late 
Lord  Elgin.  It  was  a  measure  introduced  principally  for 
the  relief  of  a  large  class  who  suffered  much  from  the  ex- 
isting state  of  the  law,  although  they  had  not  much  oppor- 
tunity of  complaining  of  it — viz.  women  and  minors.  The 
inconveniences  to  which  he  alluded  were  felt  much  in  Eng- 
land, but  they  made  themselves  still  more  felt  in  India,  owing 
to  the  condition  of  Indian  society.  Trusts  of  private  property 
might  be  said  to  have  two  objects  :  the  first  was  to  ensure  the 
safety  of  the  trust-funds  ;  the  second  was  to  ensure  the  regular 
payment  of  the  annual  income  derived  from  those  funds.  It 
was  impossible  to  over-estimate  the  hardships  which  were 
suffered  even  in  England  in  consequence  of  breaks  occurring 
in  the  trusteeship — breaks  arising  from  the  death  of  trustees, 
their  leaving  England,  their  becoming  lunatics,  or  generally 
from  the  trustees  becoming  incapable  or  unwilling  to  act  in 
the  trusts  for  the  management  of  which  they  had  been  ap- 
pointed. All  the  ingenuity  of  the  framers  of  English  trust- 
deeds  had  been  used  to  make  provision  against  these  contin- 


OFFICIAL   TRUSTEES  12/ 

gcncies,  and  several  Acts  of  Parliament  had  also  been  passed 
to  remove  the  difficulties  of  most  usual  occurrence.  The  ex- 
pedient had  sometimes  suggested  itself  to  people  in  England 
of  appointing  a  trustee  with  perpetual  succession — a  public 
functionary  with  an  office  under  him,  the  trusts  descending 
from  one  officer  to  his  successor  in  the  office.  Such  a  func- 
tionary, however,  had  never  been  appointed  ;  partly  on  account 
of  the  dislike  of  the  English  nation  to  the  multiplication  of 
public  offices,  and  partly  on  account  of  the  existence  of  the 
Court  of  Chancery,  which  was  supposed  to  have  the  general 
care  of  the  interests  of  persons  interested  in  trust  funds. 
Joint-stock  companies,  too,  had  been  launched  more  than  once, 
whose  business  it  should  be  to  undertake  trusts,  but  such 
schemes  had  always  broken  down  through  the  operation  of 
the  principle  of  English  law,  which  would  in  no  case  allow  a 
trustee  to  receive  for  his  services  any  remuneration  beyond 
his  costs  out  of  pocket.^  The  theory  of  the  English  law  seemed 
to  be  that  a  man  is  remunerated  for  becoming  a  trustee,  not 
by  a  payment  in  money,  but  by  the  claim  he  creates  on  his 
friends  and  fellow  citizens  to  undertake  trusts  for  his  benefit 
in  return.  But  here  in  India  European  society  was  so  unstable 
and  changing  that  there  was  but  little  probability  of  deriving 
reciprocal  advantages  from  serving  as  trustee,  while  stability 
and  regularity,  the  primary  objects  of  a  trust,  were  constantly 
sacrificed  by  the  departures  of  trustees  to  Europe.  On  the 
whole,  he  thought  that  a  sufficient  case  was  made  out  both  for 
having  a  public  office  of  trustee  in  India,  and  also  for  depart- 
ing from  the  principle  of  non-remuneration.  An  official  trus- 
tee had  in  fact  been  ahead}'  appointed,  and  the  principle  of 
the  Bill  now  introduced  had  been  already  recognised  in  Act 
XVII.  of  1843,  which  enabled  the  Supreme  Court  to  vest  trust 
funds  in  one  of  its  own  officers,  who  was  to  be  remunerated 
by  a  percentage.  That  Act,  however,  was  very  brief  It  did 
not  create  an  office  of  official  trustee,  and  it  applied  only  to 
the  case  of  a  trust  once  established,  and  likely  to  fail  from 
the  trustee  having  departed  from  the  jurisdiction  of  the  court. 
It  moreover  did  not  provide  sufficiently  for  the  security  of  the 

'  This  is  the  general  rule,  applicable       by  the  settlor  to  the  contrary,  or  (2)  of  a 
in  the  absence  (i)  of  express  directions       contractat  thetimeofacceptingthelrust. 


128  SPEECIIKS   OF   SIR   HENRY   MAINE 

trust  funds  ;  and  in  Madras  a  sad  case  of  defalcation  of  an 
official  trustee  had  recently  occurred.  In  framing  the  present 
Bill  he  (Mr.  Maine)  had  followed  somewhat  the  Administra- 
tor General's  Act.  Since  the  Bill  was  published,  the  opinions 
of  several  of  the  Local  Governments  and  of  the  High  Courts 
had  been  taken  :  those  opinions  were  very  generally  favourable, 
but  there  was  a  difference  of  opinion  as  to  the  rate  of  remu- 
neration proper  for  the  official  trustee.  When  preparing  the 
Bill,  he  had  consulted  various  mercantile  men,  solicitors,  and 
other  persons  likely  to  be  best  informed  on  the  subject  ;  and 
from  what  he  learnt  from  them  he  had  thought  that  the  re- 
muneration provided  for  in  the  Bill  would  be  sufficient.  That 
was  a  fit  subject  for  discussion  in  committee,  and  he  doubted 
not  that  if  those  members  of  the  Council  who  were  best  ac- 
quainted with  commercial  matters  would  allow  themselves  to 
be  put  upon  the  select  committee,  a  satisfactory  solution  of 
the  question  would  be  arrived  at. 

REGISTRATION  OF  DOCUMENTS 

March  23,  1864. 

The  Bill  referred  to  in  the  following  speech  became  law  as  x\ct  XVI. 
of  1864.  It  was  an  ill-drawn  measure  not  framed  in  the  Legislative 
Department,  and  it  had  to  be  repealed  and  re-enacted  by  Act  XX. 
of  1866.  The  present  law  on  the  subject  is  Act  III.  of  1877,  and 
under  the  Transfer  of  Property  Act,  1882,  sees.  3,  54,  59,  107,  123, 
the  Registration  Act  applies,  throughout  the  greater  part  of  British 
India,  to  every  important  transaction  relating  to  immovable  property. 
The  Act  III.  of  1877  and  its  predecessors  provide  for  the  registra- 
tion of  documents  not  of  title.  Of  some  documents  the  registration 
is  compulsory  ;  of  others  voluntary — a  distinction  which  has  caused 
much  difficulty  ;  and  perhaps  the  greatest  benefit  of  the  Indian 
system  is  that  it  supplies  proof  that  a  given  document  was  in 
existence  at  a  certain  time  and  was  not  fabricated  afterwards. 
These  Acts  were  never  intended  to  raise  money  for  the  general 
purposes  of  the  State,  but  the  financial  needs  of  the  Indian 
Government  render  it  impossible  at  present  to  apply  the  regis- 
tration fees,'  after  defraying  the  necessary  expenses,  to  increasing  the 
number  of  registration  offices,  so  as  ultimately  to  have  one  within 
easy  reach  of  every  inhabitant  of  British  India.     The  Act  might  then 

'  During  the  year  1885-S6,  ihe  Re-  1,215,930.  The  Editor  has  not  the 
gistration  Department  in  India  yielded  figures  for  subsequent  years.  They  are 
a    net    surplus    to    the    State    of   Rs.        probably  much  larger. 


REGISTRATION    OF    DOCUMENTS  1 29 

be  extended  to  many  classes  of  instruments  now  excluded  from  the 
operation  of  its  compulsory  clauses,  and  the  result  would  be  not 
merely  a  diminution  of  fraud,  but  a  sensible  increase  to  the  selling 
value  of  land  throughout  the  country.' 

When  Mr.  Ellis,  the  member  in  charge  of  the  Bill,  moved  that  the 
report  of  the  Select  Committee  be  taken  into  consideration, 

Mr.   Maine  said  that  the  Bill  had  been  so  long  before  this 
Council  and  its  predecessor,  and  before  their  committees,  and 
so    many  persons    had    successivel}'   had   charge   of   it,  that 
there    was  some  danger,    in  giving    an)'    one    person    credit 
for  it,  of  doing    injustice    to  former  members   of  the  legis- 
lature.     All,    however,    who    had    been    associated    with  his 
honourable  friend  Mr.  Ellis  would  testify  to  the  zeal,  patience, 
and  sagacity  which  he  had  brought  to  bear  upon  the  measure, 
and  the  Council  and  the  public  had  much  reason  to  be  grate- 
ful to  him  for  his  labours.     The  Bill  which  had  now  come  to 
maturity  was  one  of  which  it  was  almost  impossible  to  over- 
estimate  the   importance.      Everybody  who  had   turned  his 
attention  to  the  improvement  of  civil  justice   in   India  must 
have  found  his  calculations  baffled  b}-  one  peculiarity  of  the 
country,  the  doubt  which  hung  over   the   authenticity  of  all 
documentary  evidence.     So  far  as  regarded  one  great  class  of 
documents,  documents  relating  to  real  property,  these  doubts 
would  shortly  be  dispelled  through  the  operation  of  this  mea- 
sure.    The   modified  compulsion  to  register  other   classes  of 
documents  which  the  Bill  originally  imposed,  the  select  com- 
mittee had  not  thought  fit  to  insist   upon,  and   on   the  whole 
he  agreed  with  the  committee.      In  a  country  like  this,  where 
the  vast  mass  of  the  population  lived  entirely  by  usage — and 
where  the   difficulty  attending  legislation   was   not  so  much 
that  of  passing  laws  as  of  promulgating  them,  of  bringing  them 
to  the  knowledge  of  the  people — cruel  injustice  might  be  done 
by  changing  anew  the  law  of  limitation,  and   hence  he   (Mr. 
Maine)  concurred  in  the  expediency  of  a  double  law.  What  im- 
portance belonged  to  that  part  of  the  Bill  which  provided  for 
a  voluntary  registration  would  now  depend  upon  the  courts, 
which,  he  ventured  to  think,  would  always  require  an  explana- 
tion where  a  litigant  might  have   registered   a  deed  and   had 

'    The  Anglo-Indian  Codes,  ii.  p.  1006. 

K 


130  SPEECHES   OF   SIR    HENRY   MAINE 

omitted  to  do  so.  He  (Mr.  Maine),  however,  agreed  with  his 
honourable  friend  that  the  measure  must  sooner  or  later  go 
much  further,  and  that  a  time  would  come  when,  on  the  pro- 
duction of  any  document  in  any  Indian  court,  the  court  would 
at  once  have  all  reasonable  certainty  of  its  genuineness  and 
authenticity.  Besides  these  objects,  another  object  of  registra- 
tion was  to  give  purchasers  of  real  property  the  means  of 
ascertaining  the  existence  of  documents  affecting  the  state  of 
the  title.  How  far  the  measure  was  efficient  in  that  respect 
would  depend  on  the  way  in  which  its  machinery  was  worked  ; 
and  it  would  be  the  duty  of  the  local  governments  and  of  the 
supreme  Government  to  see  that  the  registers  were  kept  in 
such  order  as  to  afford  the  utmost  facility  in  the  search  for 
incumbrances.  The  Bill,  as  a  whole,  was  one  which  the  Coun- 
cil might  fairly  be  congratulated  on  passing. 


RE-MARRIAGE    OF  NATIVE    CONVERTS 

November  4,  1864. 

The  object  of  the  Bill  referred  to  in  the  following  speech,  a  Bill  which 
became  law  as  Act  XXI.  of  1866  and  has  completely  removed  the 
hardships  against  which  it  was  directed,  was  to  legalise  under  certain 
circumstances  the  re-marriage  of  Native  converts  to  Christianity,  who 
were,  in  consequence  of  their  conversion,  deserted  or  repudiated  by 
their  wives  or  husbands.  The  history  of  the  measure  is  best  given  in 
Mr.  Maine's  own  words,  as  contained  in  the  following  minute  dated 
February  20,  1S66  : 

It  is  necessitated  by  some  provisions  of  the  Indian  Mar- 
riage Acts  XXV.  of  1864,  repealed  and  re-enacted  by  V.  of 
T865.  Clause  3,  section  48  of  the  latter  Act,  makes  it  a 
condition  of  the  marriage  of  Native  Christians  under  Part  IV. 
that  '  neither  of  the  persons  intending  to  marry  shall  have  a 
wife  or  husband  still  living,' and  section  19  makes  it  probably 
impossible  (through  the  operation  of  the  words  '  lawful  hin- 
drance ')  for  a  Native  Christian  having  a  living  wife  or  husband 
to  be  married  under  Part  II. 

What  was  the  state  of  the  law  on  this  subject  before  1864 
is  a  matter  which  has  never  been  clearly  ascertained  ;  and, 


RE-MARRIACE   OF   CONVERTS  I3I 

indeed,  I  have  been  much  struck,  during  the  discussion  on  the 
Bill,  with  the  universal  vagueness  of  the  opinions  which  have 
prevailed  on  the  questions  involved  under  all  their  aspects. 
Sir  B.  Peacock  held  that  a  convert  having  a  wife  alive  could 
not  be  married  by  a  registrar  under  Statute  14  &  15  Vict, 
c.  40,  and  Act  V.  of  1852,  and  on  the  whole,  considering  the 
terms  of  the  statute,  I  think  he  was  right ;  but  those  laws 
are  only  permissive.  It  is  also  possible  that  in  consequence 
of  the  wide  language  of  the  statute  of  Geo.  IV.'  (which,  how- 
ever, was  never  intended  to  apply  to  such  a  case,  and  has 
been  impliedly  repealed  by  the  Penal  Code)  a  re-married 
•convert  might,  in  the  presidency  towns  and  by  the  Supreme 
Court,  ha\-e  been  punished  for  bigamy.  My  own  opinion, 
however,  is  that  if  the  convert  kept  clear  of  the  difficulties 
created  by  the  English  statutes,  he  might  not  only  have 
lawfully  married  a  new  wife,  but  as  many  wives  as  he  pleased, 
provided  his  original  religion  permitted  polygamy.  It  seems 
to  me  inconceivable  that  he  could  so  have  changed  his  legal 
position  as  to  have  rendered  marriages  subsequent  to  conver- 
sion invalid.    If  so,  the  Penal  Code  would  not  apply  to  the  case. 

I  inquired  into  the  subject  when  I  was  on  the  western 
side  of  India,  where  the  line  between  heathenism  and  Chris- 
tianity is  sometimes  very  faint,  and  I  found  that  there  were 
tribes  which,  at  periods  of  years,  oscillated  between  some 
form  of  Hinduism  and  some  of  the  Oriental  forms  of  Chris- 
tianity, such  as  Nestorianism.  This  change  made  no  differ- 
ence in  their  habits  of  polygamy  ;  but  nobody  had  ever  heard 
of  the  criminal  law  having  been  brought  to  bear  on  them,  or 
of  the  civil  rights  of  their  children  having  been  affected. 

Practically,  over  the  greatest  part  of  India  the  missionaries 
re-married  or  refused  to  re-marry  their  converts  according  to 
their  conscience  and  theological  views  ;  but  they  constantly 
protested  against  the  uncertainty  of  the  law. 

But  in  1864  it  was  finally  determined  to  put  an  end  to 
the  numerous  and  formidable  doubts  which  had  arisen  con- 
cerning the  whole  Christian  matrimonial  law  of  India,  in  its 
application,    not    only  to   Natives,  but   to    Europeans.     The 

'  9  Geo.  I\'.  c.   74,  expressly   repealed  (except  sees,  i,  7,  8,  9,  25,  26,  56) 
by  Act  X.  of  1875. 

K  2 


132  SPEECHES   OF   SIR    HENRY   MAINE 

framers  of  Act  XXV.  of  1864  decided  to  bring  Native  converts 
under  the  general  rules  governing  Christian  marriages,  but  it 
was  with  the  clearest  knowledge  that  the  special  case  of  a 
Native  convert  deserted  on  religious  grounds  by  wife  or 
husband  would  have  to  be  dealt  with  separately. 

Mr.  Maine,  in  moving  for  leave  to  introduce  the  Bill,  said  that 
there  was  probably  no  subject  which  had  been  longer  before  the 
Indian  Legislature  than  that  to  which  his  motion  related. 

Ever  since  the  supreme  Government  of  India  possessed 
true  legislative  power,  i.e.  since  the  Act  of  William  the  Fourth 
passed  in  1833,'  there  had  been  always  before  it  some 
proposal,  and  generally  a  multitude  of  proposals,  for  giving 
relief  to  Native  converts  to  Christianity  whose  wives  per- 
sistently refused,  on  religious  grounds,  to  cohabit  with  them. 
Among  the  papers  in  the  Legislative  Department,  there  were 
two  separate  Bills  framed  to  permit  the  re-marriage  of  such 
converts,  one  of  them  bearing  the  name  of  Sir  Charles 
Jackson,  the  other  that  of  Sir  Barnes  Peacock.  Mr.  Maine's 
immediate  predecessor,  Mr.  Ritchie,  had  just  before  his  death 
obtained  leave  to  introduce  a  Bill  on  the  subject,  so  that  the 
present  motion  constituted  the  fourth  instance  in  which 
positive  action  had  been  taken.  He  (Mr.  Maine)  ventured 
to  say  of  this  long  delay,  what  could  not  often  be  said  of 
delay  in  matters  of  government,  that  it  was  far  from  dis- 
creditable to  those  who  had  caused  or  acquiesced  in  it. 
There  was  no  trace  in  all  the  papers  which  he  had  read  of 
any  carelessness  or  want  of  interest.  All  the  officials  who 
had  taken  part  in  the  discussion  had  expressed  the  strongest 
sense  of  the  importance  of  the  subject,  and  had  manifested 
the  most  sincere  anxiety  to  discover  some  admissible  mea- 
sure of  relief ;  and,  indeed,  Mr.  Maine  would  say  that  the 
documents  he  had  perused,  extending  over  thirty  years, 
went  far  to  exonerate  the  Government  of  India  from  that 
charge  once  so  often  brought  against  it,  that,  of  all  the  races 
and  classes  committed  to  its  care,  none  had  so  little  of  its 
tenderness  as  the  converts  to  its  own  faith.  Still  less  did 
the  papers  disclose  any  sign  of  undue  timidity  on  political 
grounds.  Although  Lord  Canning's  Government  undoubtedly 
•  3  &  4  Wm.  IV.  c.  85. 


RE-MARRIA(}E   OF   CONVERTS  133 

expressed  an  opinion,  that  any  law  on  the  subject  ought  to 
be  a  Government  measure,  neither  it  nor  any  other  Govern- 
ment or  person  appeared  to  have  ever  thought  that,  on  such 
a  point,  the  view  of  the  Hindu  or  Muhammadan  part  of  the 
population  ought  to  prevail  ;  indeed,  the  obvious  probability 
was  that  the  matter  was  entirely  indifferent  to  natives  of 
India  not  converted  to  Christianity. 

The  reasons  of  the  hesitation  which  had  so  often  shown 
itself  were  of  a  very  different  description.  First,  there  were 
those  objections  which  grew  out  of  the  moral  or  religious 
creed  of  the  persons  composing  the  executive  and  legislature. 
Some  had  thought  a  law  like  this  doubtful  on  moral,  and 
others  on  theological,  grounds ;  and  a  great  number  had 
manifestly  been  unwilling  that,  in  its  first  legislation  expressly 
relating  to  Native  Christians,  the  Christian  and  dominant 
race,  of  which  the  legislature  was  then  exclusively  composed, 
should  place  on  record  anything  like  a  lax  or  equivocal 
construction  of  conjugal  obligations.  But  doubtless  the  chief 
cause  of  the  delay  was  the  perplexity  caused  by  the  extra- 
ordinarily various  and  conflicting  proposals  of  those  more 
immediately  interested  in  removing  the  grievances  of  the 
converts.  It  was  natural  that  missionaries  and  missionary 
bodies  should  look  upon  the  subject  under  a  special  aspect. 
Whenever  one  of  those  excellent  persons  persuaded  himself 
that  the  re-marriage  of  a  convert,  whose  wife  declined  to 
follow  him,  was  not  forbidden,  he  naturally  formed  some 
theory  to  justify  his  persuasion,  and  then  he  invariably  pressed 
the  Government  to  adopt  it.  Mr.  Maine  would  give  two 
instances  of  such  theories  as  samples,  two  of  a  remarkably 
large  number  which  had  been  pressed  on  his  attention. 
Some  of  the  most  active  clergymen  and  missionaries  in  India 
were  of  opinion  that  unconsummated  marriages  between 
children  of  tender  years  are  void  by  the  law  of  God  or  of 
nature,  and  hence  they  were  willing  that  the  law  should 
permit  the  re-marriage  of  a  person  married  in  infancy, 
but  repudiated  by  his  wife  before  cohabitation.  But  thc}^ 
would  not  go  further.  There  were  others  again  who,  holding 
the  more  tenable  opinion  that  the  law  which  governed  the 
solemnisation  of  the  marriage  ought  to  govern  the  dissolution, 


134  SPEECHES   OF   SIR    HENRY   MAINE 

looked  rather  to  the  heathen  than  to  the  Christian  rule  of 
divorce,  and  adopted  a  theory  that,  under  Hindu  and 
Muhammadan  law,  a  convert  to  Christianity  was  ipso  facto 
divorced — in  the  case  of  Muhammadans  by  the  express  ruling 
of  their  religious  authorities,  in  the  case  of  Hindus  by  a 
consequence  derived  from  the  principle  of  what  may  be  called 
religious  death.  On  this  theory  there  was,  of  course,  no 
difficulty  in  permitting  a  convert,  at  least  a  male  convert,  to 
contract  a  second  marriage.  There  appeared  to  be  in 
existence  at  least  a  score  of  such  speculative  views  of  the 
question,  some  altogether  distinct  from  the  doctrines  which 
he  (Mr.  Maine)  had  described,  some  involving  more  or  less 
modification  of  them.  It  was  inevitable  that  the  Government, 
entertaining  the  greatest  respect  for  the  missionary  view  of 
the  subject,  should  hesitate  to  make  a  selection  between  these 
conflicting  theories — to  take  its  stand  on  one  of  them,  and 
to  introduce  a  Bill  confined  to  the  limits  of  that  one  theory. 
Hence,  in  their  embarrassment,  successive  Governments  had 
been  tempted  to  leave  the  question  alone,  perhaps  in  the 
same  hope  which  seemed  to  possess  not  a  few  of  the  mission- 
aries themselves,  the  hope  that  the  knotty  point,  if  you  did 
not  toucli  it,  would  solve  itself  Now,  unquestionably,  there 
was  in  politics  such  a  thing  as  judicious  inaction  ;  some 
questions  when  left  to  themselves  settled  themselves,  but  not, 
as  Mr.  Maine  thought,  when  the  status  quo  contradicted,  so  to 
speak,  a  law  of  nature.  The  true  mode  in  which  this  par- 
ticular question  had  been  solving  itself  had  been  brought  out 
by  that  valuable  law,  the  new  Marriage  Act — valuable,  though 
it  might  require  some  modification — framed  by  Mr.  Anderson 
and  passed  by  the  Council  in  the  spring.^  That  law,  the 
Council  were  aware,  imposed  penalties  on  persons  celebrating 
marriages  not  in  accordance  with  its  provisions,  but  a  re- 
marriage under  the  circumstances  to  which  Mr.  Maine's  Bill 
would  relate  was  not  allowed  by  Mr.  Anderson's  Act,  and 
hence  to  celebrate  it  was  a  punishable  offence.  The  remon- 
strances which  this  state  of  the  law  had  elicited  showed  that 
a    considerable    number    of   the    missionaries  did   habitually 

'  Act  XXV.  of  1864,  repealed  by  Act  V.  of  1865.     The  present  law  on  the 
subject  is  Act  XV.  of  1872. 


RE-MARRIAGE   OF   CONVERTS  I  35 

celebrate  these  marriac;^e.s,  and  probably,  rather  than  tolerate 
open  concubinage  among  their  converts,  they  would  feel  it 
their  duty  to  defy  the  law  and  continue  to  solemnise  such 
marriages  at  the  risk  of  punishment.  This  was  in  itself  an 
urgent  reason  for  no  longer  postponing  legislation,  unless  the 
Council  should  be  positively  of  opinion  that  the  re-marriage  of 
converts  under  these  circumstances  ought  not  to  be  permitted 
for  some  reason  of  religion,  morals,  or  policy.  Mr.  Maine, 
for  his  part,  had  convinced  himself  that  a  measure  of  relief 
was  not  only  admissible  but  obligatory,  but,  before  he  stated 
the  grounds  on  which  he  rested  his  view,  he  would  say  at 
once  that  he  entirely  objected  to  any  enactment  adjusted  to 
the  limits  of  such  theories  as  he  had  been  attributing  to  the 
missionaries.  The  Council  would  remember  that  any  such 
enactment  would  in  fact  amount  to  a  legislative  affirmation 
of  the  speculative  basis  of  the  theory  selected  for  application. 
Now  he  (Mr.  Maine)  held  that  it  was  not  the  business  of  that 
Council  to  affirm  propositions  of  law,  and  still  less  of  theology. 
Their  duty  was  not  to  say  what  the  law  was,  but  what  it 
ought  to  be  ;  and,  on  the  other  hand,  there  was  an  obvious 
incongruity  (he  might  almost  say  indecency)  in  that  Council, 
composed  as  it  was,^  saying  what  was  or  was  not  sound 
Christian  theology.  The  only  aspect  under  which  they 
could  consider  questions  was  their  moral  or  political  aspect  ; 
and,  no  point  of  policy  here  arising,  the  argument  which  he 
would  employ  to  justify  his  Bill  would  wholly  derive 
its  force  from  moral  considerations.  It  was  true  that, 
although  his  view  was  quite  independent  of  purely  theo- 
logical reasoning,  it  would  be  difficult  or  impossible  for  him  to 
place  it  fully  before  the  Council  without  seeming  to  travel  into 
the  province  of  theologians  ;  but  the  fact  was,  it  was  neces- 
sary for  him  to  go  into  the  history  of  the  controversy  which 
had  always  existed  on  the  subject  in  the  Christian  world,  and 
in  order  to  do  that  he  must  state  shortly  the  theological  views 
which  from  time  to  time  had  been  adopted  by  the  disputants. 
He  would  first  observe  that  his  endeavours  to  acquaint 
himself  with  the  views  actually  entertained  by  the  various 
sections  of  the  Christian  community  in  India  on  this  subject 

'  Three  of  the  additional  members  were  then  Hindu  nobles,  and  one  was  a 
Muhammadan. 


136  SPEECHES   OF   SIR    HENRY   MAINE 

had  been  greatly  facilitated  by  an  interesting  series  of  papers, 
the  records  of  the  Panjab  Missionary  Conference.  All  the 
opinions  current  among  the  missionaries  in  any  part  of  India 
were,  he  believed,  more  or  less  indicated  in  that  volume.  At 
the  same  time,  the  discussion  at  the  Panjab  conference  had, 
as  a  complete  account  of  the  matter,  the  serious  defect  of 
being  wholly  confined  to  the  modern  and  recent  aspect  of  the 
controversy.  All  the  speakers  appeared  to  have  been 
ignorant,  or  to  have  designedly  omitted  all  mention,  of 
the  fact  that  the  question  of  the  re-marriage  of  Christian 
converts  had  an  ancient  as  well  as  a  modern  history.  The 
truth  was  that  the  controversy  was  one  of  the  oldest  of  those 
which  had  ever  agitated  the  Christian  Church,  and  it  had  only 
lost  its  interest  through  the  conversion  of  the  entire  Western 
world  to  Christianity,  and  the  consequent  cessation  of  mar- 
riages between  Christians  and  heathens.  He  (Mr.  Maine) 
would  presently  show  how  important  a  bearing  this  fact  had 
on  the  argument  for  the  Bill.  He  would  now  observe  that 
the  only  difference  between  the  controversy  as  now  debated 
between  Indian  missionaries  and  the  controversy  in  its 
ancient  stage  consisted  in  the  different  Scriptural  grounds  on 
which  the  disputants  based  their  reasoning.  In  the  early 
Christian  Church,  the  dispute  turned  wholly  upon  the  proper 
application  of  an  analogy.  It  was  conceded  on  all  sides  that 
divorce  was  lawful  on  the  ground  of  adultery  ;  it  was  then 
contended,  in  conformity  with  a  metaphor  common  in  early 
Christian  times,  that  heathenism  was  spiritual  adultery  ;  and 
hence  it  was  concluded,  by  those  who  took  the  affirmative 
side,  that  obstinate  persistence  in  heathenism  on  the  part  of 
husband  or  wife  was  an  adequate  justification  of  divorce. 
Mr.  Maine  did  not  assert  that  this  argument  was  always 
thought  satisfactory,  but  he  did  assert,  as  a  matter  of  history, 
that  the  preponderant  weight  of  authority  was  always  in  its 
favour.  How  strong  was  the  persuasion  which  it  carried 
with  it,  might  be  seen  from  a  passage  which  he  had  with  him, 
from  a  writer  so  old  that  portions  of  his  treatise  were  often 
found  inserted  at  the  end  of  the  oldest  manuscripts  of  the 
New  Testament — the  author  of  the  book  called  the  Shepherd 
of  Hermas.     (The  substance  of  the  passage  was,  that  adul- 


RE-]\rARRIA(iE   OF   CONVERTS  1 37 

tery  was  not  only  corporeal  but  spiritual,  and  that  heathen- 
ism, being  spiritual  adultery,  justified  divorce.')  Mr.  Maine 
cited  that  passage,  not  to  insist  on  its  cogency,  but  to  show 
the  antiquity  of  the  theological  opinion  with  which  the  Bill 
was  in  harmony.  And  the  reason  for  bringing  into  promi- 
nence the  opinions  of  the  early  Christian  Church  was  his  strong 
impression  that  many  of  the  speakers  at  the  Panjab  mission- 
ary conference  were  actuated  by  a  half-conscious  fear  that  it 
was  only  the  temporary  convenience  of  the  moment  which 
w^as  producing  a  belief  in  the  lawfulness  of  re-marriage  by 
converts.  They  appeared  to  distrust  a  conclusion  which  was 
so  obviously  expedient  in  the  interest  of  Christian  missions. 
But  when  it  was  once  seen  that  the  opinion  with  which  the 
Bill  harmonised  was  certainly  not  the  fruit  of  the  peculiar 
position  of  Christians  in  India,  when  it  was  seen  that  this 
opinion  had  been  strongly  held  ever  since  the  first  appearance 
of  Christianity  in  the  world  and  had  only  been  lost  sight  of 
through  the  Christianisation  of  the  West,  they  would  probably 
display  less  timidity  in  approaching  the  question,  and  yield 
up  their  minds  more  unreservedly  to  the  more  modern,  and 
doubtless  in  some  eyes  the  more  satisfactory,  arguments  in 
favour  of  the  lawfulness  of  re-marriage.  Sir  Charles  Jackson 
had  correctly  stated  that  those  modern  arguments  turned 
entirely  on  the  interpretation  of  a  single  text — '  But,  if  the 
unbelieving  depart,  let  him  depart ;  a  brother  or  sister  is  not 
under  bondage  in  such  cases  ;  but  God  hath  called  us  to 
peace'  (i  Corinth,  vii.  15).  Now  it  would  not  be  expected 
that  he  (Mr.  Maine)  should  offer  to  the  Council  any  theo- 
logical commentary  or  criticism  on  that  passage  ;  but  there 
were  two  remarks  which  he  would  wish  to  make,  not  as  a 
theologian,  but  as  having  some  acquaintance  with  legal  anti- 
quities. It  was  said  by  some  opponents  of  the  measure,  that 
the  text  justified  at  most  a  divorce  a  mensd  et  tJioro — a 
judicial  separation.  That  view  involved  an  anachronism. 
The  only  divorce  known  in  the  world  when  the  words  were 
written  was  an  absolute  divorce — a  vinculo  matrimonii.     Mr. 

'   Possibly  the  passage  referred  to  is  or  according  to  the  old  Latin  version, 

oh   fi.6vov,  (p-qaiv,  jxoix^ia  ecTiV,  idv  tis  Is    qui   siniulacritin    facit    vioechatur, 

Tr\v  ffdpKa  lai/ToO   /j-iiivrj,  aWa  Koi  t>s  hv  Hermae  Pastor,  lib.  II.  niand.  iv. 
ra  ofioiwfjLara  ttoi!/  TOis  iQvicriv,  /.loi^arai, 


138  SPEECHES   OF   SIR   HENRY   MAINE 

Maine,  speaking-  from  recollection,  would  say  that  divorces  a 
mensa  were  of  later  date  by  some  hundred  years.  Other 
persons  who  doubted  the  lawfulness  of  the  measure  expressed 
an  opinion  that  the  words  of  the  passage,  whatever  were 
their  meaning,  were  not  sufficiently  marked,  distinct,  and 
strong  to  warrant  the  conclusion  drawn  from  them.  Mr. 
Maine,  still  speaking  as  a  lawyer,  asserted  that  stronger  lan- 
guage could  not  have  been  used.  The  words  employed  were 
the  technical  words  of  Roman  law  implying  absolute  divorce. 
He  might  appeal  to  the  school-day  recollections  of  the 
European  members  of  Council,  who  would  remember  that  the 
ordinary  formula  of  divorce  was,  abi,  discede,  or,  as  the  phrase 
would  run  when  turned  into  the  third  person,  let  him  depart. 
The  writer  of  the  passage  was,  as  everybody  knew,  a  Roman 
citizen  ;  he  was  plainly  well  acquainted  with  the  Roman  law 
of  persons,  under  which  he  lived,  and  here  he  had  simply  trans- 
lated into  Greek  the  usual  legal  phrase  implying  that  absolute 
divorce  which  carried  with  it  the  power  of  re-marriage. 

The  first  conclusion  therefore  which  he  (Mr.  Maine)  drew 
was  that  the  measure  which  he  asked  permission  to  introduce 
would  neither  offend  the  opinions  of  the  whole  Christian 
world,  nor  the  better  and  more  instructed  opinion  of  any 
Christian  sect  or  community.  The  fact  was  that,  taking 
Christendom  as  a  whole,  there  was  even  a  greater  weight  of 
authority  in  favour  of  the  re-marriage  of  converts  under  the 
circumstances  contemplated  by  the  Bill  than  in  favour  of  the 
principle  of  divorce  on  the  ground  of  adultery.  For,  as  was 
well  known,  the  Roman  Catholic  Church  did  not  permit 
divorce  on  the  ground  of  adultery  ;  it  did,  however,  permit  the 
re-marriage  of  converts  on  the  authority  of  the  text  he  had 
cited,  as  he  (Mr.  Maine)  had  gathered  from  some  documents 
which  had  been  forwarded  to  the  Government  from  the 
Roman  Catholic  congregations  in  the  south  of  India.  He 
did  not  pretend  to  speak  with  any  certainty  of  the  Roman 
Catholic  doctrine  on  the  subject,  but  he  believed  it  to  be 
founded  on  the  assumption  that  it  was  at  the  option  of  the 
Church  to  recognise  heathen  marriages,  and  that  persistence 
in  heathenism  justified  non-recognition. 

The  preliminary  difficulty  w^hich  would  have  arisen  from 


RE-MARRIAGE   OF   CONVERTS  I  39 

the  repugnance  of  the  Christian  community  being  thus  re- 
moved, the  next  thing  was  to  inquire  what  positive  reason 
there  was  for  interference  on  the  part  of  the  Council.  On 
this  point  he  (Mr.  Maine)  would  reason  as  follows.  It  was 
absolutely  necessary  to  adopt,  in  India,  the  theory  which  ob- 
tained in  most  European  countries  of  a  distinction  between 
the  secular  or  civil  and  the  religious  or  ecclesiastical  power. 
It  needed  only  to  examine  the  composition  of  the  Council  to 
see  that  no  other  doctrine  than  this  could  possibly  be  pro- 
pounded in  it.  The  Council,  then,  representing  the  secular 
power,  had  the  right  to  guide  itself  by  reasons  of  morality  as 
distinguished  from  religion,  for  nobody  had  ever  doubted 
that  the  purely  moral  view  of  questions  was,  to  employ  the 
figure  which  had  been  so  often  used  to  illustrate  this  distinc- 
tion between  the  powers,  one  of  the  things  which  are  Csesar's. 
Now  he  (Mr.  Maine)  asserted  that  the  law  of  marriage  in 
India,  in  its  application  to  Native  Christians,  had  a  tendency 
to  produce — he  very  much  feared  it  did  actuall}'  produce,  but 
at  all  events  it  had  a  distinct  tendency  to  produce  —  immoralit}-. 
The  state  of  things  was  this.  The  great  majority  of  Hindus 
were  married  before  they  reached  the  age  of  reason.  Con- 
verts to  Christianity  were,  however,  brought  over  by  the 
operation  of  reason,  and  the  condition  of  Native  society  was 
such,  that  reason  had  necessarily  much  greater  influence  over 
one  sex  than  the  other.  Hence,  the  tendency  of  the  law  in 
its  present  state  was  to  produce  a  celibate  class.  Now  Mr. 
Maine  would  lay  down,  even  of  European  countries,  that  a 
law  which  by  its  direct  incidence  assisted  in  creating  a  class 
condemned  to  celibacy  was  immoral  and  bad.  And  if  that 
was  true  of  Europe,  how  did  matters  stand  in  India  ^  The 
subject  was  one  which  could  only  be  touched  upon  lightly, 
but  it  was  certain  that  all  the  essential  differences  between 
Oriental  and  Western  society  tended  to  augment  the  immo- 
rality of  the  law  in  India.  They  must  not  forget  that  touch 
of  asceticism  which  European  societies,  even  Protestant 
societies,  had  derived  from  the  middle  and  early  ages,  one 
result  of  which  was  that,  to  a  European,  a  life  of  prolonged 
celibacy  seemed  intelligible  and  tolerable.  But  was  it  neces- 
sary to  prove  elaborately  that,  to  an  Oriental  trained   in   the 


140  SPEECHES   OF   SIR    HENRY   MAINE 

zenana,  the  very  conception  of  such  a  Hfe  was  probably 
unintelHgible,  monstrous,  and  against  nature  ?  Mr.  Maine 
well  knew  that  some  of  the  missionaries  asserted  that  their 
converts  underwent  a  moral  purification  which  rendered  the 
trial  endurable  to  them.  That  might  be  true  in  some,  per- 
haps in  many,  cases  ;  but  he  contended  that  the  assump- 
tion of  its  truth  was  one  which  the  secular  power  had  no 
right  to  make.  It  could  only  look  at  the  law  in  its  normal 
and  ordinary  application  to  Oriental  nature. 

The  measure,  therefore,  would  be  an  interposition  of  the 
State,  or  civil  power,  from  its  own  point  of  view.  It  would 
be  a  law  of  liberty  and  constrain  no  man's  conscience. 
Nobody  would  be  compelled  to  re-marry  converts  if  he  had 
scruples  on  the  point ;  but,  on  the  other  hand,  the  State 
would  decline  to  impose  penalties  on  a  clergyman  re-marrying 
them.  People  might  take  what  religious  view  they  pleased  of 
the  position  of  the  convert  re-married  ;  but  the  law  would 
not  refuse  him  or  her  civil  conjugal  rights,  and  the  children 
would  have  the  civil  rights  attending  legitimacy.  If  the 
doctrine  or  discipline  of  any  Christian  community  forbad 
re-marriage  while  the  first  wife  was  alive,  its  ministers  need 
not  celebrate  re-marriages  :  their  power  to  keep  the  convert 
from  re-marriage  without  risk  to  morality  would  be  a  strong 
proof  of  their  influence  over  him,  it  being  understood  that 
the  responsibility  of  refusing  to  re-marry  rested  on  them,  and 
not  on  the  State.  On  the  other  hand,  the  principle  of  the 
Bill  would  give  room  for  all  partial  theories  of  the  lawfulness 
of  divorce.  Any  sect,  persuaded  that  divorce  was  lawful  up 
to  a  certain  point  or  under  special  circumstances,  might 
within  the  limits  of  the  law  work  out  its  own  theory. 

The  Bill,  which  was  not  yet  completed,  would  be  founded 
partly  on  Sir  Charles  Jackson's  draft,  and  partly  on  Sir 
Barnes  Peacock's.  It  would  not  permit  re-marriage  till  a 
considerable  interval  had  elapsed,  which  would  be  reasonable 
evidence  of  final  desertion  or  repudiation.  It  would  provide 
for  the  examination  of  the  parties  by  a  Judge,  and  he  (Mr. 
Maine)  thought  it  would  allay  some  scruples  if  the  pro- 
ceeding in  the  first  instance  took  the  form  of  a  suit  for  the 
resumption  of  conjugal  society.     It  would  also  be  a  desirable 


RE-MARRIAGE   OF    CONNKRTS  I4I 

addition  to  the  older  drafts,  if  provision  were  made  for  the 
convert  having  the  opportunity  of  trying"  his  own  persuasions 
on  his  wife,  in  an  interview  not  overlooked  or  controlled  by 
her  family.  There  would  be  many  difficulties  of  detail,  but 
he  hoped  the)^  could  be  overcome.  It  was,  he  might  say,  a 
peculiarity  of  the  subject  that  points  which  seemed  at  first 
sight  immaterial  proved  to  be  of  great  importance,  while 
difficulties  apparently  of  the  greatest  magnitude  turned  out 
to  be  no  difficulties  at  all.  For  example,  the  language  of  the 
Bill  must  be  carefully  adjusted  to  the  theory  of  its  secular 
origin  ;  and  it  was  most  essential  to  avoid  the  mention  of 
divorce,  for  otherwise  the  large  Roman  Catholic  community  in 
Southern  India,  numbering  now  nearly  a  million  souls,  would 
lose  the  benefit  of  the  law.  On  the  other  hand,  the  contingency 
of  a  convert  having  several  heathen  wives,  which  at  first  sight 
appeared  most  difficult  to  deal  with,  was  in  fact  scarcely 
worth  taking  into  account,  as  the  classes  from  which  the 
converts  came  were  practically  monogamist. 

Considering  that  the  law  of  England,  as  applied  in 
England,  recognised  no  religious  scruple  however  strong,  or 
personal  distaste  however  unconquerable,  as  a  reason  for 
refusing  to  resume  conjugal  society — considering,  on  the  other 
hand,  that  everybody  in  India  shrank  from  absolutely 
compelling  the  heathen  wife  to  rejoin  her  husband — Mr. 
Maine  thought  that  this  Bill  followed  as  a  consequence. 
Otherwise  they  were  open  to  the  reproach  that,  while  they 
were  creating  a  special  class  by  their  direct  action  on  the 
country  —  partly  by  the  energetic  efforts  of  missionary 
societies,  partly  (he  would  hope)  by  the  exhibition  of  the 
most  eminent  ingredient  in  their  own  civilisation — they  laid 
on  it  a  burden  which  they  themselves,  in  their  own  country, 
did  not  so  much  as  touch  with  the  little  finger. 

The  motion  was  put  and  agreed  to. 

[On  January  6,  1865,  after  a  debate  in  which  the  Governor 
General  (Sir  John  Lawrence),  Mr.  (now  Sir  Wm.)  Muir,  Mr.  Harington, 
and  Mr.  Gust  took  part,  Mr.  Maine  replied  as  follows  :  ] 

Sir,  the  wide  difference  of  opinion  as  to  principle  which  has 
shown  itself  between   your   Excellency   and   my  honourable 


142  SPEECHES    OF   SIR    HENRY    MAINE 

friend  Mr.  Muir  on  the  one  hand,  and  my  honourable  friends 
Mr.  Harington  and  Mr.  Cust  on  the  other,  goes,  I  think, 
some  way  to  justify  my  view  that  the  only  mode  of  solving  this 
difficult  question  is  by  requiring  those  who,  by  their  active 
exertions,  have  added  to  Indian  society  this  class  with  whose 
interests  we  have  such  difficulty  in  dealing  to  take  upon  them- 
selves, and  to  relieve  the  State  from,  the  responsibility  of  saying 
when  their  converts  ought  or  ought  not  to  be  re-married. 
Deeply,  however,  as  Mr.  Harington  and  Mr.  Muir  differ,  they 
seem  to  agree  in  considering  that  unconsummated  marriages 
between  children  may  legitimately  be  neglected,  and  that 
after  a  mere  betrothal  a  Christian  convert  may  be  allowed, 
without  more,  to  re-marry.  Of  course,  Sir,  from  the  point  of 
view  which  I  feel  myself  compelled  to  occupy  for  the  purposes 
of  this  discussion,  the  point  of  view  of  secular  morality,  there 
is  much  to  be  said  against  infant  marriages.  I  have  never 
conversed  with  an  educated  Native  gentleman  who  did  not 
allow  that  these  marriages  are  deeply  injurious  to  the  morals 
of  Native  society.  I  fear,  however,  that  if  we  allowed  a  young 
man  to  acquit  himself  of  the  obligations  which  Hindu  law  and 
his  family  have  imposed  upon  him  by  the  mere  fact  of  having 
changed  his  religion,  we  might  expose  this  measure  to  impu- 
tations which  cannot,  I  think,  be  justly  brought  against  it  as 
it  stands  :  we  might  open  the  door  to  grave  abuses,  and  cer- 
tainly should  give  room  for  great  scandal.  On  the  whole,  I 
think  that  the  safer  course  is  that  the  convert  should  allow  his 
wife  an  opportunity  of  joining  him  when  the  period  of  infancy 
has  gone  by.  But  it  is  a  point  for  consideration  in  committee 
whether,  in  the  case  of  a  marriage  not  followed  by  cohabitation, 
some  of  the  interviews  and  interrogations  provided  by  the 
Bill  might  not  be  dispensed  with.  My  honourable  friend  Mr. 
Harington  inquires  whether  the  missionaries  will  not  be  satis- 
fied if,  in  addition  to  a  measure  permitting  their  converts  to 
neglect  mere  betrothals,  a  law  allowing  divorce  on  the  ground 
of  adultery  be  enacted.  There  is  reason  to  believe  that  Her 
Majesty's  Government  is  likely  to  introduce  into  the  British 
Parliament  a  measure  giving  Indian  divorces  between  Chris- 
tians the  same  effect  as  if  they  had  been  decreed  in  the 
English  Divorce  Court.     And  if  such  a  measure  be  passed,  it 


RK-MARRIAGE   OF   CONVERTS  143 

will  certainly  be  the  duty  of  your  Excellency's  Government  to 
introduce  into  this  Council  a  Bill  providing  for  the  dissolution 
of  marriage  on  the  ground  of  adultery,  and  applying  to  all 
Christians  in  India,  Native  as  well  as  European.  But,  Sir, 
when  it  is  contended  (I  do  not  know  whether  my  honourable 
friend  so  contends,  but  it  is  sometimes  contended)  that  such 
a  law  can  be  regarded  as  a  substitute  for  this  measure,  the 
argument  is  one  which  I  regard  with  the  cxtremest  repug- 
nance and  dislike.  For,  stripped  of  all  disguise,  it  seems  to  me 
to  come  simply  to  saying  this  :  '  If  you  will  only  hold  your 
hand,  if  you  will  only  do  nothing,  the  heathen  wife  is  sure  to 
be  guilty  of  adultery,  and  then  you  may  divorce  her  without 
.shock  or  injury  to  the  conscience  of  the  Christian  world.' 
Now,  Sir,  it  is  one  of  the  recommendations  of  this  Bill  in  my 
eyes  that  it  protects  the  morality  of  the  heathen  wife  no  less 
than  the  morality  of  the  Christian  husband,  and,  by  permitting 
her  to  re-marry,  displaces,  so  far  as  legislation  can  displace, 
that  ground  of  divorce  which  some  persons  seem  to  think 
more  satisfactory  than  the  practical  defeat  of  the  objects  of 
marriage. 

As  regards  the  observation  of  my  honourable  friend  that 
the  Bill  inflicts  a  punishment  on  the  wife,  who,  according  to 
her  own  views,  has  been  guilty  of  no  wrong,  the  answer  is 
that  in  all  civilised  societies  under  express  law,  and  in  all 
uncivilised  societies  under  law  expressed  or  unexpressed,  there 
exists  a  proceeding  analogous  to  the  suit  for  restitution  of 
conjugal  society.  It  is  true  that  the  refinement  of  sentiment 
and  manners  in  Europe  rarely  allows  this  proceeding  to  be 
resorted  to  ;  but  legislators  have  not  thought  fit  to  expunge  it 
from  European  codes,  and,  indeed,  in  more  than  one  European 
code  it  has  latterly  been  made  more  stringent.  It  will  gene- 
rally, indeed,  be  found  that  in  proportion  to  the  repugnance 
of  the  framcrs  of  a  body  of  law  to  divorce  is  the  stress  they 
lay  on  the  rule  that  the  wife  must  always  be  with  her  husband — 
a  rule  which  they  occasionally  enforce  by  criminal  penalties. 
Nor  is  any  loathing,  however  deep,  a  reason  for  not  executing- 
the  obligation.  Now,  will  }-ou  compel  the  heathen  wife  to 
rejoin  her  Christian  hu.sband  against  her  will  ?  You  cannot, 
and  I  may  almost  say,  you  dare  not.     But  if  this  be  so,  the  word 


144  SPEECHES   OF   SIR    HENRY   MAINE 

'  punishment '  is  entirely  inapplicable  to  a  measure  like  this,  for 
whatever  be  the  penalty  you  inflict  on  the  wife,  it  is  a  penalty 
which,  according  to  her  views,  is  infinitely  slighter  than  that 
which,  according  to  the  principles  both  of  civilised  and  bar- 
barous law,  she  might  be  compelled  to  submit  to.  Strictly 
speaking,  she  should  join  the  husband  whom  she  loathes  with 
a  loathing  unknown  in  Europe.  But  instead  of  forcing  her  to 
do  so,  you  permit  her  to  re-marry,  and  protect  her  in  her  per- 
sonal and  proprietary  rights. 

Of  course  in  my  honourable  friend's  appeal  to  the 
bishops,  the  clergy,  and  the  missionaries  carefully  to  consider 
this  measure,  I  most  heartily  concur ;  and  I  deliberately 
abstain  from  replying  to  much  that  has  been  said  by  Mr. 
Cust  and  Mr.  Harington,  because  I  think  that  the  answer  will 
come  with  much  more  grace  and  with  much  more  effect  from 
those  to  whom  this  appeal  is  addressed.  But,  Sir,  I  have 
read  so  much  of  the  sort  of  communications  which  may  be 
expected  to  be  elicited  by  this  appeal  that  I  may  be  pardoned 
for  offering,  with  the  greatest  respect,  a  few  cautions.  Sir,  if 
the  missionaries  or  the  clergy  can  establish  that  the  morality 
of  their  converts  will  be  injured  by  the  Bill,  that  will  be  a  fact 
of  the  highest  importance.  If,  again,  they  can  show  that  the 
conscience  of  the  Christian  world  will  be  shocked  by  this 
measure  (and  of  course  we  can  only  know  the  feeling  of  the 
Christian  world  by  ascertaining  the  feeling  of  its  various  sec- 
tions), that,  too,  will  be  a  fact  of  which  this  Council  will  be 
bound  to  take  notice.  But  if  they  are  tempted  to  enter  into 
purely  theological  arguments  as  to  how  and  when  and  why 
these  marriages  are  lawful  or  unlawful,  I  would  ask  them 
merely  to  read  the  list  of  the  members  of  this  Council,  and  to 
say  with  what  decency  it  can  be  required  to  decide  whether 
such  considerations  are  right  or  wrong,  sound  or  unsound.  A 
second  caution  1  have  to  give  is  this :  the  gentlemen  who 
have  signed  the  single  petition  against  the  Bill  which  is  in  the 
hands  of  members  affirm,  with  some  boldness,  that  the  Native 
wife  comes  over  to  her  husband  in  the  great  majority  of  cases. 
My  own  information  contradicts  this  ;  and  I  have  generally 
found  that  those  missionaries  who  have  doubts  as  to  the  Bill 
confine  themselves   to  alleging  that,  if  some  long  period  of 


RE-MARRIAGE   OF   CONVERTS  145 

time  be  taken — such  as  eight,  or  ten,  or  twelve  years — the  pro- 
bability is  that  the  wife  will  come  over.  Indeed,  as  it  is  only 
recently  that  great  success  has  been  obtained  by  the  mission- 
aries, there  has  not  been  time  for  the  attainment  of  more  than 
a  probability.  But,  Sir,  the  assignment  of  these  long  periods 
of  time  constitutes  no  answer,  I  must  say,  to  my  argument— 
that  is,  to  the  secular  and  moral  argument.  For  the  obvious 
rejoinder  is,  what  sort  of  life  has  the  convert  been  living  in  the 
interval ? 

I  will  venture  yet  another  remark  for  the  consideration 
of  gentlemen  who  may  respond  to  my  honourable  friend's 
appeal.  It  has  often  struck  me  that,  in  abstract  or  moral 
questions  which  appear  hopelessly  insoluble,  a  great  part  of 
the  difficulty  usually  arises  from  persons  confidently  employ- 
ing words  without  having  quite  ascertained  their  meaning,  and 
their  true  relation  and  correspondence  with  things.  I  would 
ask  the  opponents  of  this  Bill  whether  they  are  quite  sure  of 
the  sense  in  which,  for  the  purposes  of  this  controversy,  they 
use  the  terms  '  marriage,'  '  divorce,'  and  the  like.  The  theory 
which  they  hold,  I  believe,  is  that  marriage  is  a  civil  institu- 
tion, consecrated  by  Christianity  ;  consequently,  they  take  the 
definition  of  what  constitutes  marriage  from  the  civil  and 
secular  law,  and,  in  this  countr}',  from  the  heathen  law  ;  but 
the  incidents  and  consequences  of  marriage  they  interpret  by 
Christian  law.  It  is  obvious,  however,  that  the  theory  breaks 
down  in  its  application  to  polygamous  societies,  for  each  one 
of  many  wives  is  as  much  a  wife  as  the  others,  so  that  those 
who  hold  this  view  are  compelled  to  take  a  mere  fragment  of 
the  secular  definition  and  prop  up  the  theory  with  it.  And  it 
illustrates  the  difficulty  of  the  question  that,  as  I  can  assure 
the  Council,  we  shall  probably,  in  committee,  have  to  take 
account,  not  only  of  polygamy  in  the  ordinary  sense,  but  of 
polyandry  ;  to  provide  for  the  case  not  only  of  a  man  having 
several  wives,  but  of  a  wife  having  several  husbands.  It  is 
only  because  I  await  fuller  information  as  to  the  degree  in 
which  the  civil  courts  in  the  south  of  India  recognise  this 
practice  that  I  have  omitted  all  reference  to  it  in  the  Bill.  In 
.short.  Sir,  if  we  take  India  as  a  whole,  I  believe  it  will  be 
found  that  the  forms  of  marriage  are  so  monstrous  that  it  is 


146  SPEECHES   OF   SIR    HENRY   MAINE 

impossible  to  make  them  fit  in  with  civilised,  and  still  less 
with  Christian,  theory.  It  would  seem,  therefore,  that  we  are 
thrown  back  on  the  very  foundations  of  the  institution  of 
marriage.  Accordingly,  I  would  submit  to  those  who  doubt 
the  principle  of  this  measure  whether  a  reasonable  theory  (I 
will  not  say  the  reasonable  theory,  but  a  reasonable  theory)  be 
not  that  of  the  Roman  Catholic  Church,  which,  as  I  under- 
stand it,  is  that,  while  the  most  serious  efforts  should  be  made 
to  bring  over  the  heathen  wife  to  her  husband,  the  heathen 
marriage,  nevertheless,  has  in  itself  no  such  sanctity  as  will 
compel  the  missionaries,  out  of  respect  to  it,  to  acquiesce  in 
the  defeat  of  the  practical  objects  of  marriage.  However 
that  may  be,  as  to  what  should  be  the  secular  view  I  have  no 
manner  of  doubt.  I  consider  the  creation  of  a  celibate  class 
fatal  to  morality  in  India  ;  and  when  the  gentlemen  who  have 
signed  this  petition  express  a  fear  that  the  measure  may  lead 
the  heathen  to  believe  that  Christians  think  lightly  of  the 
institution  of  marriage,  I  would  beg  them  to  ask  any  Native 
gentleman  whom  they  can  depend  upon  to  give  a  frank 
opinion  what  he  thinks  of  a  proposal  that  celibacy  be  prac- 
tised for  a  series  of  years  by  a  Native  Christian,  or  any  other 
Native.  I  must  repeat  what  I  said  in  the  first  debate  on  the 
subject,  that  if  no  such  measure  as  this  be  passed,  there  is  too 
much  reason  to  fear  that  the  missionaries,  with  the  very  best 
intentions,  at  the  cost  of  enormous  self-sacrifice  and  immense 
self-denial,  will  nevertheless  in  effect  be  propagating  immo- 
rality in  the  name  of  Christianity. 

On  March  31,  1866,  when  moving  that  the  report  of  the  select 
committee  on  the  Bill  be  taken  into  consideration,  Mr.  Maine  spoke 
as  follows  : 

In  submitting  this  important  Bill  to  the  Council,  I  shall 
perhaps  do  well  to  depart  a  little  from  the  course  usually 
pursued  when  the  motion  is  that  the  report  of  the  select  com- 
mittee be  taken  into  consideration.  That  course  I  understand 
to  be,  to  assume  that  the  principle  of  the  Bill  was  affirmed 
when  it  was  referred  to  the  committee,  and  to  confine  oneself 
to  explaining  and  justifying  the  committee's  recommenda- 
tions. But  I  can  add  nothing  to  the  reasons  assigned  by  the 
select   committee   for  its  amendments,  and  indeed   I  do  not 


RE- MARRIAGE   OF   CONVERTS  I47 

suppose  that  anybody  would  object  to  amendments  who 
does  not  object  also  to  the  principle  of  the  Bill.  In  truth,  I 
cannot  conceal  from  myself  that  it  is  the  principle  and  policy 
of  the  measure  which  have  been  in  question  throughout,  and 
that  nobody  quarrels  with  the  details  who  does  not  question 
the  lawfulness  or  the  expediency,  or  both  the  lawfulness  and 
the  expediency,  of  any  legislation  on  this  subject. 

I  do  not  now  propose  to  justify  directly  the  principle  of 
this  measure.  I  have  said  enough  about  that  already  in 
former  stages  of  the  discussion,  and  indeed  I  have  little  more 
to  say.  But  I  propose  to  lay  before  the  Council  the  history  of 
the  measure ;  to  show  what  were  the  evils  of  which  the 
measure  is  remedial  ;  to  point  out  what  was  the  political  and 
legal  situation  resulting  from  thoseevils,  and  to  demonstrate  that 
out  of  that  situation  there  was  but  one  way  of  escape.  I  hope  to 
prove  that  it  was  simply  impossible  not  to  legislate  on  the  re- 
marriage of  Native  converts  repudiated  by  their  heathen  wives, 
and  that,  the  necessity  having  arisen,  only  one  mode  of  legis- 
lation was  practicable  and  permissible.  Of  course  I  do  not 
mean  to  say  that  I  am  not  warmly  and  heartily  in  favour  of 
this  Bill.  But  it  is  due  to  myself,  and,  what  is  much  more 
important,  to  his  Excellency  the  Viceroy — and  I  say  it  all  the 
more  heartily  in  his  absence — to  establish  that,  whoever  was 
at  the  head  of  the  Government  of  India,  and  whoever  was  in 
charge  of  its  legislative  business,  some  measure  of  this  kind 
must  have  been  submitted  to  the  Council,  and  that  this 
measure  could  not  widely  have  differed  from  the  Bill  now 
under  consideration,  or  at  least  (and  this  I  am  entitled  to  say) 
could  not  have  differed  from  it  by  any  difference  which  has 
been  pointed  out  to  us  by  the  numerous  persons  who  have 
engaged  in  the  discussion  upon  it 

It  is  first  of  all  necessary  for  me  to  explain — so  far  as 
explanation  is  possible — what  was  the  state  of  the  law  among 
Christians — the  law  governing  the  celebration  and  formalities 
of  marriage — before  the  legislation  of  1 864  ;  before  the  two 
Marriage  Acts  of  1864  and  1865,  one  repealing  and  re-enact- 
ing the  other,  which  I  may  call  for  convenience  Mr.  Anderson's 
Acts. 

If  there  are  any  members  of  Council  present  who  recol- 


148  SPEECHES   OF   SIR    HENRY   MAINE 

lect  the  discussions  on  Mr.  Anderson's  first  Bill,  they  will 
agree  with  me  that  the  uncertainty  and  confusion  which  the 
matrimonial  law  exhibited  can  only  be  described  by  one 
epithet — it  was  chaotic.  The  doubts  affecting  it  covered  the 
whole  ground  between  a  doubt  whether  the  marriage  law  in 
India  was  not  stricter  than  that  of  England,  and  a  doubt 
whether  it  was  not  laxer  than  that  of  Scotland.  This  condi- 
tion of  things  had  long  existed,  and,  having  it  in  view,  Parlia- 
ment had  provided  a  partial  remedy  by  passing,  in  185 1,  the 
Statute  14  &  15  Vic.  cap.  40,  which  was  carried  into  full 
effect  by  the  Indian  Act  No.  V.  of  1852.  The  statute  pro- 
vided a  mode  in  which  marriages  might  be  celebrated,  and  all 
marriages  solemnised  under  its  provisions  were  to  be  abso- 
lutely valid.  It  contained,  however,  a  proviso  to  this  effect  : 
'  Nothing  herein  contained  shall  invalidate  or  affect  any  mar- 
riages which,  under  the  law  for  the  time  being  in  force  in 
India,  might  have  been  there  solemnised  in  case  this  Act  had 
not  passed.'  So  that  the  statute  did  nothing  to  resolve  the 
question — which  affected  many  Europeans  and  nearly  all 
Native  Christians — what  was  the  proper  legal  view  of  mar- 
riages which  were  celebrated  independently  of  its  provisions  ? 
A  course  of  legal  decisions  had  rendered  this  question  one  of 
extreme  gravity.  In  a  celebrated  case,  well  known  to  lawyers, 
which  was  thoroughly  analysed  by  Mr.  Anderson  in  the  ex- 
haustive speech  which  he  delivered  at  the  final  reading  of  his 
Bill — The  Queen  v.  Millis^ — the  majority  of  the  English 
judges  advised  the  House  of  Lords  that  under  the  English 
common  law,  i.e.  the  law  as  unaffected  by  statutes,  the  pre- 
sence of  a  person  in  holy  orders  was  essential  to  the  valid 
solemnisation  of  a  marriage.  There  was,  however,  a  dissent- 
ing minority  of  judges,  and  it  included  names  of  such  emi- 
nence and  authority  that  the  question  was  regarded  by  lawyers 
as  far  from  finally  settled.  And  shortly  afterwards  the 
Supreme  Court  of  Bombay,  and  Dr.  Lushington  in  the  English 
Ecclesiastical  Court,  decided  that,  whatever  were  the  state  of 
the  common  law  in  England,  it  could  not  be  held  to  extend 
to  colonies  and  dependencies  like  Australia  and  India,  not 
even  to  the  presidency  towns,  which  are  subject  to  so  much  of 

>  10  CI.  &  F.  534. 


RE-MARRIAGE   OF   CONVERTS  149 

English  law.  Of  course  the  reasoning  of  these  courts  ap- 
plied with  tenfold  force  to  the  marriages  of  Native  Christians 
in  the  Mufassal,  who  own  no  inherited  or  local  allegiance  to 
the  English  common-law.  On  the  whole,  the  better  opinion 
seemed  to  be — although  the  whole  subject  was  beset  by  doubt 
— that  Native  Christians  might  lawfully  marry  by  a  contract, 
to  use  the  technical  expression,/^;'  verba  de praescnti  tempore, 
i.e.  by  any  words  or  forms  showing  a  present  intention  to 
marry  ;  and  whether  the  marriage  was  legal  or  not  the 
majority  of  them  did,  I  believe,  so  marry. 

Up  to  this  point  I  have  been  speaking  of  the  marriages 
of  Native  Christians  under  ordinary  circumstances — not  of 
Native  converts  wishing  to  marry  under  the  circumstances 
contemplated  by  the  Bill.  What  then  was  the  position  pre- 
vious to  the  Indian  legislation  of  1864  in  regard  to  marriage 
of  a  convert  deserted  or  repudiated  by  his  unconverted  wife  } 
Sir  B.  Peacock  held  that  he  could  not  be  married  in  the 
presence  of  a  marriage  registrar  under  the  Act  of  Parliament, 
and  considering  the  purely  English  point  of  view  from  which 
the  Act  is  conceived  and  drawn  I  think  he  was  right — at  all 
events,  I  bow  to  his  opinion.  But  the  doctrine  is  of  no  im- 
portance, because  there  was  no  necessity  for  marrying  under 
the  Act,  and  in  fact  the  great  majority  of  converts  were  sim- 
ply married  by  missionaries  according  to  the  simple  forms 
which  they  considered  suitable  to  the  solemnisation. 

It  is  right  I  should  add  that,  till  five  or  six  years  since, 
it  is  possible  that  a  Native  Christian  who  had  re-married  dur- 
ing the  life  of  the  heathen  wife  might  have  been  punished  for 
bigamy  in  the  English  sense,  if  he  ventured  within  the  juris- 
diction of  one  of  the  Supreme  Courts.  This  is  a  consequence 
of  the  wide  language  of  a  statute  of  George  IV.,'  which,  how- 
ever, was  never  intended  to  apply  to  such  a  case,  but  was 
meant  to  put  down  the  scandalous  practices  of  a  very  different 
class  of  people.  The  Act,  indeed,  is  a  good  illustration  of  a 
peculiar  grievance  of  the  Native  Christians.  The  draftsmen 
of  the  British  Parliament,  in  order  to  escape  the  long 
circumlocutory  phraseology  necessary  for  the  description  of 
all  classes  of  Europeans  in   India — East  Indians,  colonists, 

'  9  Geo.  IV.  c.  74.  s.  70. 


150  SPEECHES   OF   SIR   HENRY   MAINE 

and  so  forth— fell  into  the  habit  of  using  the  term  '  Chris- 
tian subjects  of  Her  Majesty,'  and  thus  laws  have  more  than 
once  been  made  applicable  to  Native  Christians  quite  foreign 
to  their  circumstances  and  position.  There  is  an  instance 
in  an  Act  of  Parliament  passed  this  very  last  session.  But, 
however  that  may  be,  the  statement  I  have  made  about  the 
Act  is  of  no  practical  importance,  because  an  enormous 
majority  of  Native  Christians  never  came  near  presidency 
towns,  and  because  the  statute  has  been  repealed  by  the 
Penal  Code. 

Here  is  section  494  of  the  Penal  Code  :  '  Whoever,  hav- 
ing a  husband  or  wife  living,  marries  in  any  case  in  which 
such  marriage  is  void  by  reason  of  its  taking  place  during  the 
life  of  such  husband  or  wife,  shall  be  punished  with  imprison- 
ment of  either  description  for  a  term  which  may  extend  to 
seven  years,  and  shall  also  be  liable  to  fine.' 

The  Code,  therefore,  it  will  be  seen,  makes  everything 
turn  on  the  civil  invalidity  of  the  second  marriage,  on  its 
being  civilly  void  because  of  the  first.  At  the  present  moment, 
the  Acts  of  1864  and  1865  do  make  the  second  marriage 
civilly  void,  but  how  did  the  law  stand  before  1 864  ?  On 
what  ground  could  it  be  contended  that  the  marriage  of  the 
convert  leaving  his  heathen  wife  was  void  ?  Putting  aside 
for  a  moment  those  difficult  questions  turning  on  the  effect  of 
Native  matrimonial  law  in  operating  a  divorce  through  con- 
version, it  could  only  be  on  one  ground,  that  there  was  some- 
thing in  Christianity  which  forbade  a  Christian  to  have  two 
wives  at  once.  Now  I  know  there  are  many  here  who  will 
only  consent  to  derive  their  law  of  Christian  life  direct  from 
the  Bible,  but,  so  far  as  law  is  concerned — though  I  may  sur- 
prise some  by  the  statement — there  is  no  codex,  no  body  of 
express  rules  setting  forth  discipline,  except  the  Canon  Law, 
which  is  accepted  by  the  courts  of  even  Protestant  countries 
as  authoritative  on  the  point  where  it  has  not  been  expressly 
dissented  from.  Now,  the  Canon  Law,  while  laying  down  the 
general  rule,  does  permit  a  convert  to  re-marry  during  his 
first  wife's  life  where  she  deserts  him  on  religious  grounds.  In 
fact,  the  definition  of  the  Penal  Code  before  cited  let  in  the 
delicate  theological  point  to  which  I  will  advert  presently. 


RE-MARRIAGE   OF   CONVERTS  151 

Indeed,  I  must  go  further.  I  feel  the  scandalousness  of  the 
position  ;  but  I  am  not  sure  that  a  Native  convert  might  not 
lawfully  have  practised  polygamy.  It  may  plausibly  be  con- 
tended that  a  Native  of  India,  converted  to  Christianity  from 
a  religion  which  permitted  polygamy,  did  not  by  the  fact  of 
conversion  so  change  his  legal  status  as  to  render  invalid 
after  it  any  marriage  he  might  have  contracted  before.  To 
apply  the  rule  of  monogamy  to  him  is  obviously  impossible, 
for  he  might  have  had  five  or  six  wives  before  conversion, 
who  would  not  have  been  less  his  wives  after  conversion. 

Of  course,  I  know  that  some  of  these  propositions  are 
disputable — indeed,  it  is  part  of  my  case  that  the  whole  sub- 
ject was  immersed  in  doubt — but  I  have  stated  my  opinion, 
which  I  believe  to  be  the  better  opinion,  and  it  is  some  pre- 
sumption in  its  favour  that  it  corresponds  with  actual  practice. 
For  it  is  certain  that  these  marriages  were  entered  into  freely 
by  Native  Christians,  and  nobody  ever  heard  that  a  Native 
Christian  was  ever  punished  for  marrying  during  the  lifetime 
of  the  unconverted  wife,  or  that  any  missionary  was  punished 
for  abetting  an  illegality  through  marrying  him. 

This  then  was  the  state  of  the  law.  Every  part  of  it  was 
enveloped  in  doubt ;  doubt  which  affected  all  Christians,  but 
Native  Christians  more  than  all.  It  was  doubtful  whether 
they  were  not  bound  to  marry  in  the  presence  of  a  marriage 
registrar,  which,  considering  their  situation  and  circumstances, 
amounted  to  a  prohibition  of  marriage  ;  but  again  it  was 
doubtful  whether  they  could  not  marry  with  just  as  much  or 
as  little  ceremony  as  was  necessary  to  supply  proof  of  inten- 
tion. It  was  doubtful  whether  a  Native  Christian  might  not 
be  punished  for  bigamy  in  the  presidency  towns  for  marrying 
when  his  spiritual  guide  told  him  such  marriage  was  lawful  ; 
but  again  it  was  doubtful  whether  he  might  not  with  im- 
punity continue  to  practise  polygamy. 

I  hold  myself  dispensed  from  showing  cause  why  the 
legislature  should  have  interfered  in  such  a  state  of  things. 
What  worse  could  its  bitterest  critics  say  of  it,  than  that  it 
declined  to  remedy  evils  so  intolerable  ?  Doubts  concerning 
the  validity  of  marriage  are  not  simply  serious  on  grounds  of 
feeling,  though  everybody  who  has  observed  how  much  the 


152  SPEECHES   OF   SIR   HENRY   MAINE 

moral  and  religious  views  on  this  subject  are  affected  by  the 
legal  view  will  consider  them  serious  even  on  that  ground. 
But  they  are  formidable  for  the  most  solid  reasons.  Such 
doubts  are  doubts  concerning  the  legitimacy  of  children  ;  they 
are  doubts  concerning  the  guardianship  of  children  ;  they 
are  doubts  concerning  the  descent  and  inheritance  of  property. 
And  they  are  especially  painful  because,  if  the  questions 
involved  in  them  are  wrongly  solved,  the  error  or  negligence 
of  the  parents  is  visited  on  unborn  generations.  The  danger 
meanwhile  was  greater  in  regard  to  the  Native  Christians  than 
any  other  class,  because  they  were  practically  debarred  from 
the  only  complete  security  against  mistake,  marriage  under 
the  Marriage  Act  then  in  force. 

I  cannot  see  what  the  Indian  legislature  was  good  for,  if 
it  felt  itself  unequal  to  placing  the  law  of  Christian  marriage 
on  a  satisfactory  footing.    However  that  may  be,  nobody  now 
a  member  of  the  Government  or  of  this  Council  is  responsible 
for  the  beginnings  of  the  undertaking.     As  soon  as  the  three 
great  codes — the  Penal  Code,  Civil  Procedure  Code,  and  Crim- 
inal Procedure  Code — were  completed,  it  was  felt  that  the  law 
of  marriage  was  the  next  great  body  of  rules  which  it  was 
urgently  necessary  to  consolidate  and  put  in  order  ;  and  Mr. 
Ritchie,  my  predecessor  in  office,  was  for  months  before  his 
death  engaged  in  drawing  a  Marriage  Bill,  much  of  which  i.s 
now  embodied  in  the  Acts  of  1864  and    1865.      Mr.  Ritchie's 
papers  were  left  imperfect  at  his  death,  and  hence  I  cannot  be 
sure  that  I  have  gathered  his  intention  from  the  indications 
they  furnish  ;  but  I  am  under  the  impression  that  he  intended 
to  bring  all  Native  Christians  under  the  same  law  as  Europeans 
in  respect  of  the  formalities  of  marriage.     But  when  he  died, 
and  the  papers  were  transferred  to  Mr.  Harington,  hesaw  the 
practical    impossibility    of  suiting    to    the    circumstances  of 
Natives  any  system,  however  liberal  and  elastic,  which  fitted 
Europeans,  and  Mr.   Harington  accordingly  added  the  pro- 
visions which  now  appear  as   Part    IV.  of  the  Act  in   force^ 
under  which  licences  to  solemnise  marriages  are  to  be  freely 
issued  to  respectable  persons,  whether  laymen  or  clergymen^ 
by  the    local  government.       The  celebrant    is  to  report  the 
marriages  he  has  solemnised,  but  is  not  bound  to  use  any 


Ri:-.MARRIAGE   OF   CONVF.RTS  I  53 

special  form.  He  is,  however,  obliged  to  see  that  certain 
conditions  are  satisfied  by  the  person  he  marries,  and  here 
occurs  the  provision  which  has  rendered  this  Bill  necessary. 
The  person  wishing  to  marry  is  not  to  have  a  wife  or  husband 
already  alive.  Now,  as  Mr.  Harington's  opinions  are  known, 
I  presume  he  intended  a  very  simple  settlement  of  the  ques- 
tion, and  meant  to  prohibit  converts  from  re-marrying  pend- 
ing the  lifetime  of  the  unconverted  wife.  But  when  the 
measure  passed  into  Mr.  Anderson's  hands  and  went  to  com- 
mittee, I  need  not  say  that  the  wisdom  and  justice  of  this 
prohibition  were  sharply  denied  ;  probably  the  majority  of 
the  committee  were  adverse  to  the  prohibition.  But  it  was 
seen  that  to  settle  the  question  at  once  would  be  to  delay 
indefinitely  an  urgent  reform.  The  situation  of  the  Native  con- 
verts was  unsatisfactory,  but  the  general  state  of  the  law  of 
marriage  was  still  more  unsatisfactory.  Accordingly,  the 
course  followed — not  only  justifiable,  but  in  my  opinion  the 
only  one  which  could  have  been  taken — \\-as  to  declare  in  the 
Bill  the  general  rule,  that  a  Christian  should  have  but  one 
wife  ;  but  to  leave  the  special  case  of  a  convert  repudiated  to 
be  dealt  with  separately.  When  the  Bill  came  into  Council, 
the  Lieutenant  Governor  of  Bengal  was  not  satisfied  with  a 
mere  understanding,  but  tried  to  introduce  words  into  the 
Bill  intending  to  pledge  the  Government  to  take  up  the  ques- 
tion. I  opposed,  on  the  technical  ground  that  it  was  not  con- 
stitutional for  the  Council  to  force  the  Executive  Government 
to  any  particular  course,  and  the  Lieutenant  Governor  withdrew 
his  motion.  But  it  appeared  to  me,  and  I  state  it  now,  that 
every  member  of  the  Government  and  of  the  Council  engaged 
by  implication  that  this  exceptional  case  should  be  fully  gone 
into,  though  of  course  no  pledge  could  be  given  as  to  the 
special  mode  of  settlement.  No  sooner  did  we  get  to  Simla 
than  the  Lieutenant  Governor  pressed  for  the  fulfilment  of  the 
engagement.  An  answer  conveying  a  pledge  to  legislate  was 
given  on  August  27,  1864,  and  on  the  very  first  day  of  the 
sittings  of  1864-65  I  redeemed  the  pledge  by  moving  for 
leave  to  introduce  this  Bill. 

If  I  have  had  the  good  fortune  to  make  myself  intelli- 
gible to  the  Council,  it  will  result  from  my  statement  that  the 


154  SPEECHES   OF   SIR   HENRY   MAINE 

discussion  on  which  we  are  engaged  to-day  is  not  merely  the 
supplement  to,  but  actually  part  of,  the  discussion  which 
took  place  when  the  Marriage  Act  was  under  debate. 
No  objector  to  the  Bill  is  entitled  to  take  advantage  of  the 
fact  that  the  re-marriage  of  converts  repudiated  by  heathen 
wives  has  for  two  years  been  illegal  in  India.  That  is  a  mere 
accident  arising  from  the  impossibility  in  India  of  holding 
continuous  sittings  of  the  legislature.  We  must  recur  to  the 
situation  in  which  we  found  ourselves  in  the  spring  of  1864. 
We  must  consider  ourselves  as  having  laid  down  the  general 
rule  (to  which  who  will  object  ?)  that  a  Christian  can  have  but 
one  wife,  and  we  must  regard  ourselves  as  proceeding  to  con- 
sider the  special  case  of  the  repudiated  convert.  This  is  the 
true  position  of  the  question  to-day,  and  it  is  important  to 
bear  it  clearly  in  mind  for  the  following  reasons.  It  alters 
the  burden  of  proof  Many  of  the  excellent  persons  who 
have  addressed  us  in  petitions  are  under  the  impression  (per- 
haps not  an  unnatural  one)  that  it  is  for  the  Government,  or 
for  me,  to  justify  the  principle  of  the  Bill.  But  strictly  speak- 
ing this  is  an  incorrect  view.  The  liberty  of  re-marriage  must 
be  considered  as  enjoyed  by  the  Native  Christians,  certainly  in 
practice,  and  probably  under  sanction  of  law,  and  it  is  for 
those  who  would  sweep  it  away  to  prove  their  case,  and  it  is 
for  those  who  would  abridge  it  to  justify  by  argument  the 
limitations  which  they  would  place  upon  it. 

If  I  had  any  reason  to  think  that  this  measure  would  be 
opposed,  I  might  stop  there,  and  leave  to  opponents  what  I 
am  sure  would  be  the  extraordinarily  difficult  task  of  estab- 
lishing a  case  against  the  Bill.  But  as  I  do  not  anticipate  any 
opposition,  I  will,  as  briefly  as  I  can — and,  so  to  speak,  under 
protest — advert  to  the  objections  which  might  be  urged 
against  me,  as  I  collect  them  from  the  papers  which  have 
been  circulated  through  the  Council.  The  first  of  these 
objections,  and  the  most  difficult  to  deal  with,  is  the  objection 
that  the  divorce  and  re-marriage  of  the  convert  are  not  per- 
missible under  the  laws  of  Christianity.  I  call  it  the  most 
difficult  to  deal  with  of  all,  not  because  it  is  unanswerable, 
but  because — even  if  I  were  competent  to  answer  it — I  could 
not  make  out  a  case  conclusive  to  the  minds  of  those  who  use 


RE-MARRIAGE   OF   CONVERTS  I  55 

it  unless  I  travelled  into  topics  which  cannot  be  handled  in  a 
Council  composed  as  this  is.  Although,  however,  I  cannot 
hope  to  convince  those  who  doubt  the  lawfulness  of  the 
measure,  I  venture  to  think  I  can  point  to  a  weight  of 
authority  in  favour  of  its  principle  which  must  at  all  events 
show  them  that  the  question  must  be  considered  as  settled,  so 
far  as  any  secular  legislature  is  concerned.  The  exact  point 
I  hope  to  prove  is  that,  as  a  matter  of  fact  and  as  a  matter  of 
history,  no  church  or  religious  community  in  all  Christendom 
has  ever  given  a  decision  or  an  opinion  on  the  question 
involved,  which  decision  or  opinion  has  not  been  in  harmony 
with  the  Bill. 

The  first  religious  community  which  I  shall  mention  as 
having  ruled  the  point  in  favour  of  the  view  taken  by  the 
Bill  is  the  Roman  Catholic  Church,  and  I  mention  it  first 
because  its  doctrine  is  based  on  the  Canon  Law — which  is  all- 
important  in  this  discussion — and  which  declares  divorce  law- 
ful under  the  circumstances,  and  even  settles  a  procedure  to 
be  followed.  And  here  I  must  express  my  surprise  at  the 
language  held  by  some  of  the  critics  of  the  Bill  about 
the  Canon  Law.  They  seem  almost  to  suppose  that  its 
authority  being  in  favour  of  the  Bill  ought  to  militate  against 
it,  rather  than  otherwise,  in  the  eyes  of  Protestants.  Now  I 
always  thought  it  almost  a  commonplace  in  ecclesiastical  law 
that,  where  the  Canon  Law  has  not  been  expressly  dissented 
from  by  the  Protestant  churches,  its  authority  on  points  of 
discipline  like  this  is  held  by  them  to  be  not  only  great,  but 
paramount.  At  present,  however,  I  will  merely  cite  it  as 
proving  that  the  Roman  Catholic  Church  considers  the  divorce 
of  a  convert  repudiated  by  his  heathen  wife  to  be  lawful. 

Mr.  Maine  then  proceeded  to  quote  authorities  showing 
the  concurrence  of  other  religious  bodies  in  this  view.  He 
said  that,  although  the  information  which  had  reached  him 
was  imperfect,  he  had  no  doubt  that  the  Greek  Church  held 
the  same  doctrine  on  the  point.  After  observing  that  the 
dogmatic  statements  of  Luther  and  Calvin  on  points  like  this 
were  held  binding  by  the  Continental  Lutheran  and  Calvin- 
istic  Churches,  Mr.  Maine  quoted  opinions  to  the  same  effect 
from  Luther  and  Calvin.     He  also  cited  Melancthon,  as  being 


15^  SPEECHES   OF   SIR   HENRY   MAINE 

the  draftsman  of  the  Confession  of  Augsburg.  For  the 
opinions  of  the  Scottish  Presbyterian  Church,  the  English 
Presbyterians,  and  the  various  dissenting  reHgious  bodies 
descended  from  them,  he  appealed  to  the  Westminster  Con- 
fession, observing  that  the  text  on  which  the  controversy 
turned  was  quoted  in  the  margin  at  the  passage  which  bore  on 
the  point  in  the  earliest  editions.  The  only  religious  com- 
munity which  had  not  pronounced  dogmatically  on  the  point 
was  the  Anglican  Church,  but  it  was  one  of  the  characteris- 
tics of  the  Anglican  Church  only  to  pronounce  on  emergent 
questions.  Its  doctrine  on  other  points  was  to  be  collected 
from  its  learned  authorities,  and  which  way  the  weight  of 
learned  authority  inclined  might  be  seen  by  the  opinions  of 
English  divines  quoted  in  the  pastoral  of  the  Bishop  of  Cal- 
cutta,' whose  own  adoption  of  the  view  taken  by  the  Bill 
might  indeed  be  regarded  as  establishing  what  was  the  voice 
of  learning.  The  simple  fact  was,  there  was  no  authority 
whatever  the  other  way,  good,  bad,  or  indifferent.  Mr.  Maine 
did  not  complain  of  the  opposition  to  the  Bill  offered  by  a 
few  missionaries  and  a  considerable  number  of  Bengal  chap- 
lains ;  but  it  was  quite  idle  to  suppose  that  every  man  could 
form  a  satisfactory  opinion  of  himself  and  for  himself  on  a 
point  of  discipline  which  for  century  after  century  had  been 
of  interest  to  all  Christian  churches  alike  and  upon  which  it 
had  never  occurred  to  them  to  differ.  At  all  events,  all 
Christendom  being  on  one  side  and  these  gentlemen  on  the 
other,  a  mere  legislator  must  be  guided  by  the  voice  of 
Christendom. 

Mr.  Maine  proceeded  :  It  is  objected  to  the  Bill — and 
this  is  the  second  objection  which  I  will  notice — that  it  is 
only  required  by  a  small  number  of  converts.  Here  I  will 
say  that,  if  I  made  any  concession  to  the  opponents  of  the 
measure,  it  would  be  that  the  general  language  of  some  of  its 
friends  as  to  the  number  of  cases  in  which  divorce  is  actually 
required  has  been  somewhat  too  strong.  But  then  the 
number,  though  not  extraordinarily  great,  is  still  very  con- 
siderable, and  it  is  sure  to  increase,  for  both  the  causes  which 
bring  the   husband  over   to  Christianity,  and  the  influences 

'  The  Right  Rev.  Dr.  Cotton. 


RE-MARRIAGE   OF   CONVERTS  I  57 

which  keep  back  the  wife,  are  steadily  growing  in  strength. 
And,    indeed,  even  were  the  area  of   the  grievance  smaller 
than  it  is,  it  is  always  most  difificult  to  apply  statistics  to  a 
grievance  which,  though   felt   by  a  few,  is  probably  felt   by 
those  few  as  quite  intolerable.     But  the  truth  is   I   claim,  as 
cases  making  in  favour  of  the  Bill,  all  the  instances  in  which, 
under  the  present  system,  the  wife  comes  over  of  herself — 
voluntarily,  as  it  is  called.      It  is   a  very  inadequate  view  of 
this  Bill  if  it   be  only  regarded   as   a  Bill   for  dissolving  the 
marriages  of  Native  Christians.      It  is  in  its  main  features  a 
Bill  for  the  restitution  of  conjugal  society,  and  the  great  merit 
I  claim  for  it  is,  that  it  substitutes  a  merciful  and  regular,  for 
a  cruel  and  irregular,  procedure.     The  argument  of  the  few 
missionaries  who  are  opposed  to  it  is  that,  in  the  majority  of 
cases,   the   wife   joins   her   husband    voluntarily.      The   fact 
appears  to  be  so    at    present,  though,  singularly   enough,  it 
appears  to  be  unknown  to  the  Native  petitioners  against  the 
Bill,  who  evidently  assume  that  the  new  law  will  for  the  first 
time  give  his  wife  to  the  Christian  husband.     But  though  she 
comes  over,   in  what  sense  can  she  be    said    to    come    over 
voluntarily  .-*     The  truth  is,  there  is  a  procedure  by  which  she 
is  brought  over,  but  it    is  a  procedure  involving  the  slight 
defect  of  moral  torture  or  worse.     It  would  be  moral  torture 
if  it  were  only  a  conflict  between  affection  for  her  husband  and 
deference  to  the  persuasions  and  misrepresentations  of  her 
kindred.     But  it  is  too  often  torture  in  another  sense.     What 
brings  her   over,  is  the  intolerable  life  of  the  Hindu  widow  ; 
what  brings  her  over,  is  too  often  a  course  of  life  which  has 
unfitted  her  for  the  society  of  her  husband,  as  much  as  it  has 
done  for  the  society  of  her  relatives  who  have  at  last  driven 
her  out.     And  if  the  procedure  employed  is  sometimes  aided 
by  the  expedients  resorted  toby  her  husband  to  communicate 
with  her,  I  can  only  say  that  these  expedients,  as  described  to 
me,  seem  to  me  open  to  the  gravest  misconstruction.     But  for 
this   procedure,    cruel,    capricious,   and    even    scandalous   as 
it  is,  the  Bill  will  substitute  a  procedure,  simple,  regular  and 
effectual.    Twice  within  two  years  from  the  desertion  the  wife 
will  be  judicially  asked  whether  she  will  join  her  husband  ; 
twice    she  will    be  solicited    by  her  husband   to  come  over, 


158  SPEECHES   OF   SIR   HENRY   MAINE 

but  never  sola  cum  solo  ;  that  was  never  intended,  and  those 
who  have  a  contrary  impression  cannot  have  read  the  Bill. 
That  is  all  it  comes  to  ;  and  yet  so  convinced  am  I  that  the 
cause  which  keeps  back  the  wife  in  the  majority  of  cases  is 
not  horror  of  the  husband's  person,  but  misrepresentation  by 
others  of  his  new  mode  of  life,  that  I  am  sure  this  simple  pro- 
cedure, these  few  opportunities  of  explanation,  will  be  enough 
to  overcome  her  reluctance.  No  doubt  there  will  be  a  small 
residuum  of  cases  in  which  the  husband  will  not  succeed  ;  but 
in  these  cases  the  absolute  impossibility  of  restoring  conjugal 
society  may  be  taken  for  granted,  and  to  these,  and  to  these 
only,  the  provisions  for  divorce  will  apply. 

I  now  come  to  what  in  the  language  of  this  country  is 
called  the  political  objection.  Agreeing  that  it  is  just  and 
right  to  give  redress,  does  the  situation  of  the  English,  of  the 
British  Government  in  India,  admit  of  its  being  given  }  Now 
there  are  several  gentlemen  at  this  table  whose  experience  of 
the  country  enables  them  to  answer  that  question  with  far 
more  authority  than  I  can,  but  there  are  many  things  which 
lead  me  to  think  it  would  be  very  surprising  if  the  question 
had  to  be  answered  in  the  negative.  In  the  first  place,  the 
Bill  has  been  framed  upon,  and  moulded  to,  the  opinions  and 
suggestions  of  the  Maharajas  of  Vizianagram  and  Bardwan, 
and  it  would  be  strange  if  the  British  Government  were  com- 
pelled to  greater  tenderness  for  the  obligations  of  rank  and 
caste  than  our  honourable  colleagues.  In  the  next  place — 
and  the  Council  will  see  that  this  consideration  is  likely  to 
have  some  weight  with  me — a  Native  lady  exposed  to  the  full 
brunt  of  this  procedure  will  undergo  no  sort  of  indignity 
which,  if  indignity  it  be,  she  would  not  have  to  suffer  ten 
times  over,  if  she  were  plaintiff  or  defendant  in  a  suit  for  half 
a  bigha  of  land,  or  indeed  if  she  happened  to  know  anything 
about  it  and  her  testimony  were  required.  I  hear  it  said  on 
good  authority  that  the  agitation  against  this  Bill — not  very 
fervent  or  formidable — was  commenced  by  some  Native  gen- 
tlemen attached  to  the  bar  of  the  Agra  Sadr  Court.  Is  it 
possible  they  can  be  unaware  that  commissions  for  the  private 
examination  of  ladies  of  the  highest  rank  issue  every  day  in 
Bengal  and  the   North-West,  and  that  the  commissioner  is 


RE-MARRIAGE   OF   CONVERTS  159 

often — is  ahvaj's,  if  it  can  be  managed — an  English  gentle- 
man of  my  own  profession,  who  is  quite  as  much  an  outcaste 
as  the  unfortunate  husband  ?  All  the  epithets  which  the 
tolerant  habits  of  this  Government  permit  our  petitioners  to 
repeat  of  the  Christians  with  such  complacency,  that  they  are 
outcaste,  degraded,  and  utterly  unclean,  apply  in  all  their  force 
to  the  barrister-commissioner,  and  the  Native  lady — though 
the  form  of  a  curtain  may  be  between  them — is  exposed  to 
the  calamity,  so  much  dwelt  upon  in  the  petitions,  of  breath- 
ing the  same  air  with  him  ;  indeed,  she  is  exposed  to  a  pro- 
cess much  more  unpleasant  than  the  solicitations  of  the 
unfortunate  husband,  a  severe  cross-examination.  The 
Council  must  really  not  confound  objections  to  the  procedure 
of  the  Bill  with  objections  of  another  kind — objections  to  a 
man's  becoming  a  Christian.  One  of  our  petitioners  (I  do  not 
agree  with  his  opinions,  but  I  will  do  him  the  justice  of  saying 
that  he  is  a  very  honest  man)  has  proposed  that  the  offence  of 
conversion  to  Christianity  should  be  punished  by  seven  years' 
rigorous  imprisonment.  I  am  afraid  that  this  opinion  per- 
vades several  papers  which  the  Council  has  before  it,  and  in 
which  it  is  not  avowed. 

But  whatever  be  the  weight  to  be  attached  to  the  Native 
objections  to  the  measure,  t  must  make  one  observation  on 
them — I  entirely  deny  the  right  of  the  same  person  to  make 
the  Christian  and  the  non-Christian  objection  at  the  same 
time.  It  is  not  permitted  to  argue  that  the  Bill  is  not  re- 
quired because  the  majority  of  wives  come  over,  and  to  argue 
in  the  same  breath  that  their  coming  over  is  a  grievous  wrong 
to  the  Hindus.  And  it  illustrates  the  levity  with  which  some 
of  the  arguments  against  the  Bill  have  been  taken  up,  that  it 
has  been  described  as  tending  to  make  the  heathen  suppose 
that  Christians  think  lightly  of  the  marriage-bond.  Why,  the 
very  objection  of  the  heathen  is  that  the  measure  does  not 
treat  the  marriage-bond  lightly  enough.  They  have  not  the 
smallest  reluctance  to  let  the  convert  marry  a  new  wife,  or 
twenty  new  wives.  What  they  quarrel  with  is  the  careful  con- 
sideration shown  to  the  first  marriage  and  the  first  wife.  It 
would  be  easy  to  silence,  if  not  to  satisfy,  all  the  Native  peti- 
tioners against  the  Bill — those  excepted  who  simply  object 


l6o  SPEECHES   OF   SIR    HENRY   MAINE 

to  Christianity — by  a  simple  excision  of  the  sections  which 
provide  a  procedure  to  be  followed  before  divorce.  But  I 
cannot  give  up  that  procedure.  I  cannot  give  it  up,  in  the 
first  place  in  justice  to  the  wife.  I  do  not  think  the  situation 
of  a  Hindu  widow  so  happy,  or  that  of  a  Christian  wife  so 
unhappy,  that  I  can  consent  to  leave  her  to  her  family  unless  in 
deference  to  her  fully  ascertained  free-will.  The  missionaries 
and  the  converts  are  well  informed  as  to  the  causes  which 
generally  keep  the  wife  apart  from  her  husband.  It  is  no 
fanciful  opinion  about  his  outcaste  condition  ;  it  is  misappre- 
hension about  his  new  mode  of  life — some  miserable  fable 
about  meat,  drink,  or  raiment,  by  which  she  has  been  deluded 
— which  deters  her.  I  cannot  agree  to  leave  her  to  her 
widowhood  until  at  least  an  opportunity  has  been  given  of 
explaining  these  delusions  away.  Again,  I  cannot  abandon 
the  procedure  in  justice  to  the  husband,  for,  if  in  law  she  is 
still  his  wife  (which  is  the  case  supposed),  I  do  not  choose  to 
assume  that  his  sole  object  in  suing  her  is  to  obtain  facilities 
for  marrying  somebody  else.  Lastly,  I  am  not  ashamed  to 
say  that  I  will  not  surrender  the  procedure,  because,  while  it 
is  equitable  in  itself,  it  is  in  harmony  with  the  theory  of 
divorce  in  which  so  many  Christian  churches  have  concurred, 
and  by  which  the  Native  converts  and  their  advisers  are,  pre- 
sumably, guided.  That  theory  I  understand  to  be,  that  while 
divorce  on  the  ground  of  persistent  heathenism  is  lawful,  it  is 
not  lawful  in  cases  where  the  civil  law  maintains  the  validity 
of  the  marriage  unless  some  serious  attempt  is  made  to 
recover  the  wife's  society.  It  is  the  more  reasonable  to  make 
some  concessions  to  the  doctrines  held  by  the  converts,  be- 
cause I  am  convinced  that,  in  regard  to  this  particular  matter, 
they  obtain  less  than  fair  treatment  simply  because  they  are 
Christians.  It  is  not  only  that  we  forget  that  they  are  a 
Native  race,  with  many  of  the  characteristics  of  all  Native 
races,  but  we  actually  show  them  less  consideration  than  other 
Native  races.  I  am  completely  convinced  that  if  conversions 
had  been  going  on  in  some  parts  of  India  from  Hinduism 
to  Muhammadanism,  and  if  the  convert  to  Muhammadan- 
ism  had  entertained  the  same  feeling  as  the  Christian  convert 
about  his  first  wife  (which  one  knows  he  would   not),  and 


RE-MARRIAGE   OF   CONVERTS  l6l 

if  the  disturbances  which  would  be  the  probable  consequence 
had  compelled  us  to  legislate — I  feel  sure  that  a  Bill  applying 
this  carefully  guarded  procedure  would  have  been  praised  by 
all  as  eminently  prudent,  moderate,  and  equitable.  But  be- 
cause the  converts  are  Christians,  every  point  is  taken  against 
them.  For  this  reason  I  have  been  compelled  to  prove,  I  fear 
at  tedious  length,  that  they  are  entitled  by  their  own  religious 
laws  to  demand  relief  Contingencies  on  which  not  a  thought 
would  have  been  bestowed  if  another  Native  race  had  been  in 
question  have  to  be  carefully  weighed  and  taken  into  account ; 
the  very  molehills  of  Hindu  prejudice  are  exaggerated  into 
mountains,  and  difficulties  which  in  everyday  Indian  life 
crumble  away  at  a  touch  are  assumed  to  be  of  stupendous 
importance.  I  know,  of  course,  that  w^e  do  this  because  the 
converts  are  of  our  own  faith,  and  because  we  are  tender  of 
our  character  for  impartiality.  But  I  do  not  know  that  we 
are  entitled  to  be  unjust  even  for  the  sake  of  seeming  to  be 
impartial.  Surely  the  duty  of  the  British  Government  to  the 
Christian  converts  is  too  plain  for  mistake.  We  will  not  force 
any  man  to  be  a  Christian  ;  we  will  not  even  tempt  any  man 
to  be  a  Christian  ;  but  if  he  chooses  to  become  a  Christian,  it 
would  be  shameful  if  we  did  not  protect  him  and  his  in  those 
rights  of  conscience  which  we  have  been  the  first  to  introduce 
into  the  country,  and,  if  we  did  not  apply  to  him  and  his  those 
principles  of  equal  dealing  between  man  and  man  of  which 
we  are  in  India  the  sole  depositaries. 

[In  moving  the  introduction  of  four  sections  giving  an  appeal  to 
a  respondent  who  denied  the  jurisdiction  of  the  Court  on  the  ground 
that  the  petitioner  was  not  a  Native  husband  or  a  Native  wife,  Mr. 
Maine  said  :] 

It  had  been  alleged  by  some  of  the  petitioners  that  under 
their  law  also  a  marriage  was  dissolved  by  the  conversion  of 
either  partner.  That  there  was  much  difference  of  opinion  on 
the  subject  might  be  inferred  at  once  from  the  contradictory 
observations  of  Raja  Sahib  Dyal  and  the  Maharaja  of  Viziana- 
gram.  He  might  remind  the  Council  that  there  was  some 
antecedent  presumption  that,  under  Muhammadan  law,  disso- 
lution of  marriage  followed  conversion  ;  for  Muhammadanism 
was  a  system  founded  on  conversion.      It  was   therefore  per- 


l62  SPEECHES   OF   SIR   HENRY   MAINE 

fectly  possible  that  the  contingency  of  a  re-conversion  had 
been  provided  for  from  the  first.  But  Hinduism  was  nothing 
of  the  kind.  Hinduism  was  a  social  system  sanctioned  by 
supposed  divine  ordinances  ;  and  the  inference  was  that 
membership  in  it  was  regarded  as  such  a  privilege  that  no  one 
would  willingly  forego  it.  Hence  all  antecedent  probabilities 
were  in  favour  of  the  conclusion,  that  under  Hindu  law  con- 
version would  not  operate  as  a  dissolution  of  marriage. 

He  had  gone  through  the  opinions  of  the  Pundits  appended 
to  the  various  petitions  that  had  been  received,  and  had  done 
his  best  to  draw  a  proper  conclusion  from  them.  To  an  Eng- 
lish lawyer,  all  Hindu  law  appeared  like  law  in  the  gaseous, 
or  at  most  fluid,  condition.  But  he  had  had  the  most  learned 
assistance  in  India  in  interpreting  the  citations  annexed  to 
these  opinions,  and  the  conclusion  he  had  come  to  was  that 
in  the  earliest  authorities  there  was  no  reference  to  conversion 
at  all.  They  considered  that  a  man  might  sometimes  forego 
his  birthright  by  stress  of  passion  or  necessity.  But  they  did 
not  seem  to  have  contemplated  that  which  we  now  call  con- 
version—  that  is,  the  substitution  of  one  set  of  alleged  spiritual 
truths  for  another.  It  did  not  appear  to  have  occurred  to 
them  that,  by  mere  disbelief,  a  Hindu  could  give  up  the  privi- 
leges to  which  he  had  been  born.  When  you  came  a  little 
lower,  there  were  no  doubt  certain  vague  references  to  con- 
temners of  the  Vedas  :  these  passages  were  said  to  be  pointed 
at  the  Buddhists  or  the  materialistic  sects  ;  and  certainly  there 
were  some  of  them  in  which  the  person  guilty  of  the  offence 
described  was  said,  in  a  vague  sort  of  way,  to  become  an  out- 
caste.  It  w^as  now  alleged  that  this  language  applied  to  the 
Christians,  and  in  fact  everything  depended  upon  the  correct- 
ness of  this  application.  But  even  then  the  desired  end  was 
not  reached,  and  it  was  only  by  a  very  long  artificial  chain  of 
reasoning  that  we  could  arrive  at  the  conclusion  that  a  con- 
vert's marriage  was  dissolved.  Dr.  Duff,  in  a  paper  recently 
printed,  had  stated  that  '  the  result  of  our  inquiries  led  us  to 
conclude  that,  while  a  change  of  religion  did  not  absolve  any 
convert,  male  or  female,  from  a  previous  lawfully  contracted 
marriage  alliance,  such  change,  in  the  case  more  especially  of 
conversion  from  Hinduism,  entitled  the  unconverted  party  to 


RE-^^ARRIA(;E   OF   CONVERTS  1 63 

treat  the  other  (by  Hindu  law)  as  civilly  dead,  and,  conse- 
quently, as  ipso  facto  repudiated.'  That  might  be  so.  But 
you  could  not  put  civil  death  above  natural  death  ;  and  yet  it 
was  quite  notorious  that,  before  the  Widow  Marriage  Act,'  in 
the  opinion  of  the  so-called  orthodox  Hindus  not  even  natu- 
ral death  dissolved  a  marriage.  They  admitted  that  there 
were  authorities  in  their  works  which  seemed  to  show  that  a 
widow  might  re-marry  when  her  husband  became  an  outcaste, 
or  was  dead  ;  they  argued  that  those  passages  which  had  once 
been  binding  had  ceased  to  confer  liberty  or  create  obligation. 
This  was  the  Kali  Yiiga,  the  fourth  age,'^  and  there  were  man}' 
liberties  once  enjoyed  which  had  been  abrogated.  It  did  seem 
to  him,  so  long  as  this  theory  of  a  Kali  Yuga  was  maintained, 
it  was  quite  impossible  to  come  to  a  positive  conclusion  on 
any  point  of  Hindu  law  that  had  not  been  sanctioned  by  con- 
stant usage  or  decided  expressly  by  judicial  authority.  How- 
ever, he  did  not  put  himself  forward  as  an  authority  on  Hindu 
law ;  and  the  practical  conclusion  he  came  to  was  that  the  de- 
cision of  the  question,  whether  or  not,  in  the  case  of  a  Hindu, 
conversion  operated  as  a  dissolution  of  marriage,  was  one 
which  must  be  left  to  the  courts,  and  the  section  which  he  pro- 
posed to  move  would  facilitate  the  attainment  of  the  requisite 
decision. 

There  was  another  course  of  reasoning  which  he  had  to 
meet.  '  You  admit,'  it  was  said,  '  that  by  Hindu  law  a  convert 
to  Christianity  becomes  an  outcaste.'  Now,  in  fact,  this  was  a 
proposition  which  Mr.  Maine  neither  affirmed  nor  denied  ;  but 
assuming  it  to  be  sound,  it  was  said  you  ought  to  carry  the 
doctrine  farther,  and  grant  a  divorce  as  a  logical  consequence 
of  the  husband's  outcaste  condition.  That  brought  us  to  the 
important  question  which  met  us  constantly  in  legislation — 
the  question,  what  were  we  to  do  when  we  came  upon  a  rule 
of  Native  law  to  which  we  objected  on  strong  moral  grounds  ? 
Mr.  Maine  confessed  that  on  moral  grounds  he  objected  to 
the  Muhammadan  rule  of  divorce  by  conversion,  and  as  re- 
garded persons  becoming  outcastes  by  conversion  from  Hindu- 
ism to  Christianity  many  of  the  Native  gentlemen  who  signed 

'^  Act  XV.  of  1856.  years  B.C.,  and    is    to    last    altogether 

■  It  began  on  February   18,   3,102       432,000  years. 

M  2 


164  SPEECHES   OF   SIR   HENRY   MAINE 

the  petitions  were  sensible  men  and  must  understand  that  it 
was  absurd  to  expect  the  members  of  the  British  Government 
quite  to  hug  this  theory  to  their  hearts.  Perhaps  ours  was 
the  first  Government  that  had  ever  allowed  its  subjects  such 
ample  freedom  of  expressing  their  opinions  as  to  its  religious 
position.  What  then  was  to  be  done  ?  Mr.  Maine  said  that 
the  clear  rule  was  to  accept  these  objectionable  positions  as 
we  found  them,  and  if  they  were  clearly  established,  we  did  not 
make  them,  and  were  not  responsible  for  them.  But  we  should 
not  go  a  step  further.  We  should  not  turn  the  objectionable 
rule  into  a  basis  for  further  legislation.  We  should  not  put 
a  legislative  superstructure  upon  that  which  we  considered 
morally  unsound.  If  we  once  began  legislating,  we  could  not, 
he  repeated,  avoid  the  necessity  of  declaring  what  ought  to  be. 
The  practical  result  of  the  amendments  which  he  proposed 
was  to  enable  a  court  of  law  to  declare,  with  regard  to  Hindu- 
ism as  a  whole,  or  any  particular  Hindu  sect,  or  any  of  the 
non-Hindu  religions  of  India,  whether  a  convert's  marriage 
was  dissolved  by  the  fact  of  conversion. 


SPECIFIC  PERFORMANCE 

November  ii,  1864. 

The  withdrawal  of  the  Bill  relating  to  fraudulent  breaches  of  contract 
(supra,  p.  86)  was  regarded  by  Mr.  Maine  as  implying  a  pledge  that 
the  civil  procedure  of  India  applicable  to  contracts  should  contain 
rules  as  to  their  specific  performance.  With  this  view  he  drew  four 
sections  which  were  inserted  in  a  draft  Code  of  Civil  Procedure  pre- 
pared by  Mr.  Harington.  After  referring  to  these  sections,  which 
never  became  law,'  he  proceeded  as  follows  : 

I  now  pass  to  the  principle  involved  in  the  specific  per- 
formance of  a  contract — which  I  need  scarcely  say  to  the 
Council  is  its  actual  or  exact  performance — the  doing  of  the 
very  thing  promised  to  be  done  as  opposed  to  the  right  to 
recover  damages  for  the  non-performance  of  that  promise. 
From  the  plaintiff's  point  of  view,  nobody,  I   suppose,  would 

'  The  Indian  law  on  the  subject  is  measure  enacted  while  Mr.  (now  Lord) 
now  contained  in  sees.  12-30  of  the  Hobhouse  was  Law  Memljer  of  the 
Specific    Relief   Act,    1877,     a    useful        Governor  General's  Council. 


SPECIFIC    PERFORMANCE  1 65 

deny  that  the  specific  performance  of  his  contract  is  what 
abstractedly  he  is  entitled  to,  and  not  the  reco\ery  of 
damages,  which,  probably,  neither  he  nor  the  defendant 
contemplated  when  the  contract  was  made.  Hence,  it  is 
practically  found  that  in  proportion  as  a  system  j3f  law  aims 
at  doing  perfect  justice  to  all  parties,  it  leans  towards  specific 
performance,  and  takes  the  stress  of  its  remedies  off  damages. 
To  take  some  examples  :  the  English  courts  of  common  la\\', 
which,  with  many  practical  excellencies,  have,  it  must  be  ^X^, 
owned,  but  an  imperfect  theory  of  justice,  had  originally  no 
power  of  enforcing  specific  performance,  and  onl}^  lately 
acquired  it  b)'  statute.'  But  the  English  Court  of  Chancer}'. 
which,  w  ith  man)-  great  and  grave  defects,  has  a  more  perfect 
set  of  principles  than  the  courts  of  common  law,  has  always 
ordered  and  still  orders  specific  performance  in  cases  where 
damages  would  be  an  insufficient  remedy.  (Mr.  Maine  here 
quoted  a  statement  of  the  principle  from  a  judgment  of  Lord 
Hardwicke's,^  and  continued  :)  I  do  not  w^ish  to  invite  the 
attention  of  the  Council  to  merely  technical  points.  But  I 
may  say  that  the  action  of  the  Court  of  Chancery  in  matters 
analogous  to  that  before  us  cannot  be  understood  without 
taking  into  account  its  system  of  injunctions,  under  which 
by  ordering  a  man  not  to  do  a  particular  thing,  it  virtually 
tells  him  what  to  do.  I  freely  admit,  however,  that  both  as 
regards  specific  performance  and  as  regards  injunctions,  the 
Court  of  Chancery  exhibits  more  timidity  than  would  be 
inferred  from  the  amplitude  of  the  language  in  which  the 
Judges  declare  the  principle  ;  and  doubtless  the  smallness  of 
the  transaction  would  be  a  reason  for  the  Court's  not  inter- 
fering. The  reason  of  that  I  take  to  be  this  : — The  Court  of  > 
Chancery,  much  as  it  has  been  reformed,  is  still  a  great  and^ 
complex  machine,  difficult  to  be  put  into  motion,  and  not^ 
always  certain  of  operation  when  it  does  move.  Many  of  it.sc 
rules  still  savour  of  the  doctrine,  which  does  credit  to  its 
modesty,  that  a  Chancery  suit  is  a  great  evil,  not  to  be  en- 
couraged  if  not  to  be  discouraged.     But,  when  we  come   to 

'  Mr.    Maine  probably  referred  to  Common    Law    Procedure  Act,    1854, 

the  jurisdiction  to  enforce  specific  per-  sec.  11. 

formance  of  contracts  to  refer   to  arbi-  -  Possibly  that  in  Buxton  v.  Listei , 

tration,  which  had  been  given  by  the  3  Atk.,  3S3. 


1 66  SPEECHES   OF   SIR    HENRY   MAINE 

systems  of  codified  law,  with  a  procedure  much  cheapened 
and  simpHfied,  we  find  no  such  hesitation  in  decreeing  specific 
performance.  Accordingly,  the  French  law,  which  is  now  the 
law  of  the  greater  part  of  Europe,  will  always  order  specific 
performance  when  the  defendant  is  able  to  perform.'  And 
so  little  difficulty  do  the  civil  courts  make  about  decreeing  it 
that  I  myself  remember  a  French  court  ordering  an  eminent 
author  to  write  a  novel,  in  six  volumes.  And  as  there  are 
some  persons  who  appear  to  think  that  there  is  something 
unpractical  about  a  highly  simplified  law  of  procedure,  I  may 
as  well  go  on  to  say  that  M.  Dumas  did  write  the  novel. 
But,  unquestionably,  the  most  advanced  law  on  the  subject 
is  contained  in  the  Code  of  Civil  Procedure.  For  as  I  read 
the  sections  192  and  200  of  the  Code,-  the  right  of  an  Indian 
Mufassal  court  to  decree  specific  performance  is  exactly 
co-extensive  with  its  right  to  decree  damages.  So  that,  as 
the  law  stands  at  present,  damages  for  a  breach  of  contract 
to  marry  being  unquestionably  recoverable  in  India,  a  court 
of  justice  may  order  a  man  to  marry  a  particular  woman,  and 
mayTmgrison~him  if  he^declijues.^  And  it  illustrates  the  value 
of  the  censures  which  have  been  directed  against  these 
sections  of  mine  as  innovations  designed  in  the  interest  of  the 
planters,  that  when  we  get  into  committee  I  shall  have  to  ask 
my  honourable  friend  to  allow  the  law  to  be  narrowed,  and 
certain  classes  of  contracts  to  be  excluded  from  the  rule. 

I  know  it  will  be  said  that  the  question  in  India  is  not 
whether  an  order  for  specific  performance  is  just  to  plaintiffs, 
but  whether  it  is  just  to  defendants.  I  say  that  it  is  just  to 
defendants,  and  eminently  just  and  eminently  kind  to  poor 
defendants.     See  hpw_spe^ific  perforrnance  operates.      In  the 

/  first  place,  under  the  existing  rnHTarTTaw  the  "defendant  has 
the  same  ground  of  defence  in  opposing  a  decree  for  specific 
performance    as    he  has   in   opposing  a  decree   for  damages. 

°^,  Next,  the    court    cannot    order    specific    performance    of    a 

'   See  the  Laic   Quarterly  Review,  -  Mr.    Maine    refers    to    the    Code 

viii.    p.    251.      The   note   in    Fry   on  then  in  force,  ?.^.  Act  VIII.  of  1859. 
Specific  Performance,  2nd  ed.   p.   669,  ^  It    seems    that   in  some    German 

seems   incorrect.     As    to    the   German  States    orders    may   be   made    for    the 

and   Dutch  laws  of  Specific  Perform-  specific  performance  of  a  contract    to 

ance,  see  Anglo-Indian  Codes,  I.  p.  931,  marry.    See  the  Law  Quarterly  Review, 

note  I.  viii.  252. 


SPECIFIC    PERFORMANXE  167 

•contract  unless  it  is_satisficd  that  the  defendant  in  fact  is  able 

to  perform  it.     Here  is  the  great  safeguard  and  protection  of 

poor  defendants.     A  decree  for  damages  has  this  character- 
istic of  a  criminal  penalty,  that  it  issues  unconditionally,  and 
without    regard  to  the  circumstances    of  a  poor    defendant, 
who  must  pay  or  go   to    prison.     But    an  order    of  specific 
performance  is  moulded  to  the  circumstances  of  the  person 
against  whom  it  issues.     I  am  not  afraid  to  face  the  question 
which  is  no  doubt  in  the  minds  of  the  Council,  and  to  ask 
what   is    the  effect    of   a  system  of    specific  performance  as 
compared  with  a  system  of  damages,  as  between  planter  and 
ryot.     It  is  this.     The  planter  obtains  a  decree  for  damages 
and  executes  it.     He  seizes  the  ryot's  bullocks,   his  plough, 
and  his  brass  pans.     They  are  worthless  to  the  planter — but 
to  the  ryot,  if  what  is  said  of  him  be  true,  if  he  be  a  mere 
adscriptus  glebac,  living  from  hand  to   mouth,  they  must  be 
invaluable — they   must  be  the  very  means  of  living.     Now,>  /}l&^^ 
what  worse  could  one  say  of  a  remedial  system  than  that  itS 
inflicts  the  maximum  of  injury  on  the  defendant,  and  confers^ 
the  minimum  of  benefit  on  the  plaintiff?     Suppose,  however, 
the  decree  is  not  executed  :  it  is  then  hoarded  up  and  kept 
hanging  in  tei^rorem  over  the   ryot.     I  have  no  hesitation  in?   -^^/3£^ 
saying    that    a  system  of  perpetually  unexecuted  decrees  is)  [l^^^/ 
sufficient  to  keep  an  open  sore  eternally  running  in  society,  ^j 
Can    such   a  system    be  compared    with    one    of  redress    by 
specific    performance  ?     Is  it  not    infinitely    better  that    the 
^Court  should  step  in,  and  when  the  defendant  has  shown  the 
first    symptoms    of    intending    to    commit    a    breach,    order 
the  contract  to  be  performed,  at  the  same  time  taking  away 
.none  of  his  rights  of  defence  ? 

Just  see  what  the  case  is.  It  is  not  that  of  a  man  who, 
when  he  made  the  contract,  did  not  intend  to  perform  it. 
That  is  a  punishable  offence  under  the  Penal  Code.  Nor  is 
it  the  case  of  a  defendant  who,  from  unforeseen  circum- 
stances, becomes  unable  to  perform  his  contract.  For  it 
would  never  be  possible  for  the  plaintiff  to  show  the  power 
of  such    a   defendant    to    perform    the  contract,    and   conse- 

'  Sections  230  and  266  of  the  present  Code  of  Civil  Procedure  have  abated 
'the  evils  here  referred  to. 


l68  SPEECHES   OF   SIR    HENRY   MAINE 

quently  no  order  for  specific  performance  would  issue.  The 
case  is  that  of  a  person  who,  when  he  made  the  contract,  did 
intend  to  perform  it,  but  subsequently  changes  his  mind. 
Surely,  the  sooner  the  Court  steps  in  after  the  original  inten- 
tion has  been  formed,  and  obviates  the  change  of  intention, 
the  better  it  is  for  the  defendant,  and  certainly  the  better  for 
the  interests  of  morality.  But  I  should  be  sorry  that  the 
Council  should  suppose  that  all  I  have  said  is  mere  theor\' 
and  speculation.  The  advantageousness  of  a  system  of 
specific  performance  to  poor  defendants  I  know  from  personal 
observation.  Look  to  the  English  county  courts.  They 
were  established,  not  to  supply  the  defects  of  the  Court  of 
Chancery,  which  at  that  time  were  regarded  as  incurable,  but 
to  supply  those  of  the  courts  of  common  law.  Consequently, 
they  possess  by  law  no  power  of  awarding  specific  perform- 
ance of  contracts.'  But  still,  insensibly,  progressively,  against 
the  law,  and  without  fixed  intention  on  the  part  of  the  judges, 
by  the  mere  force  of  commiseration  for  the  poor  they  have 
become  courts  awarding  specific  performance.  The  judges, 
seeing  much  of  poor  men,  and,  like  all  who  see  much  of 
them,  contracting  a  sympathy  with  their  troubles,  become 
unwilling  to  make  unconditional  decrees  for  payment  of 
damages,  and,  consequently,  for  imprisonment.  This  is  what 
constantly  occurs  in  certain  parts  of  England.  An  artisan 
has  contracted  to  execute  a  piece  of  work.  If  it  was  in 
Coventry,  it  would  be  some  lengths  of  ribbon  ;  if  in  Not- 
tingham, a  pair  of  shoes.  He  has  broken  his  contract,  and  is 
brought  into  court.  Legally  the  judge  can  only  condemn 
him  to  pay  damages  and  consequently  to  go  to  prison.  But 
practically,  if  he  finds  that  the  defendant  can  still  execute  the 
contract,  he  adjourns  the  case  and  gives  him  time  to  perform  it. 
In  other  words,  without  law  he  decrees  specific  performance. 
Knowing  this,  I  was  not  surprised  when  I  learned  in  spring 
what  was  the  plan  which  the  first  practical  jurist  of  England, 
Lord  Westbury,  had  devised  for  the  relief  of  the  poor  from 
the    coarse    machinery    of    the    county    courts.     The    Lord 

'  This  was  so  in  1S64.     But  by  the  contracts  of  sale  was  expressly  given  to 

County  Courts  Act,    1865,   sec.    i,    all  the  County  Courts  when  the  purchase- 

the  jurisdiction  of  the  Court  of  Chan-  money  did  not  exceed  500/.,  and  now 

eery  in  suits  for  specific  performance  of  see  the  County  Courts  Act,  1S67,  sec.  9. 


SrECIFIC    TERFORMANCE  1 69 

Chancellor's  Bill  was  avowedly  designed  in  the  interests  of 
poor  defendants  ;  and  I  have  seen  it  asserted  that  it  was 
thought  too  favourable  for  defendants,  too  unfavourable  for 
plaintiffs,  and  that  it  consequently  was  postponed.  Here  is 
the  English  Bill,  and  its  principle  is  to  lessen  the  power  of 
these  courts  to  award  damages  and,  consequentl}%  imprison- 
ment, and  to  give  them  all  the  powers  of  the  Court  of 
Chancer}',  and  amongst  them  that  of  awarding  specific  per- 
formance. Indeed,  making  allowance  for  the  difference  of 
procedure  in  the  two  countries,  and  the  consequent  difference 
of  form  in  the  Bills,  it  may  almost  be  said  that  these  very  ^yj^^ 
sections,  which  have  been  condemned  in  India  as  devised  in 
the  inte7est~oif  the  richThave  beHTtransferred  to  the  English 
Billjn  the  interest  of  the  poor.  Both  Bills  are,  at  all  events, 
founded  on  a  principle  which  I  at  least  have  always  con- 
tended for  as  applicable  to  jurisdiction  over  the  poor,  that  of 
taking  the  stress  of  judicial  remedies  from  damages,  and  of 
freely  employing  those  equitable  remedies  which  can  be 
moulded  to  the  situation  of  persons  and  to  facts. 

I  know,  however,  what  may  still  be  said  to  mc,  that  this 
is  all  very  plausible,  but  that  there  is  a  part  of  India  in  which 
unjust  contracts  are  made.  Let  us  assume  those  contracts  to 
be  as  unjust  as  they  are  alleged  to  be.  Are  you  going  to 
keep  the  whole  procedure  of  India  in  a  backward  condition 
because  unjust  contracts  are  made  in  a  corner  of  Bengal  ? 
Even  there  the  probability  is  that  the  majority  of  contracts 
are  perfectly  fair.  But  I  maintain  that,  even  as  regards? 
unfair  contracts,  a  s}'stem  of  specific  performance  is  better) 
than  a  system  of  damages,  and  that  the  more  scientific- 
instrument  will  inflict  the  less  deadly  wound.  I  have,  how- 
ever, for  myself  no  objection  to  state  what  further  expe- 
dient I  would  employ  to  solve  this  ever-recurring  contract 
difficulty.  I  would  provide  courts  and  judges  of  such 
capacity  that,  while  on  the  one  hand  \'Ou  arm  them  with  the 
utmost  resources  of  civil  procedure,  on  the  other  they  shall 
be  able  to  recognise  and  take  cognizance  of  equitable 
defences  in  suits  for  breach  of  contract,  as  distinguished  from 
legal  and  formal  defences.  Our  Mufassal  courts  are  courts  "^^^^ 
botli  of  law  and  equity  ;  and,  under  a  proper  adrninijtration 


I/O  SPEECHES   OF    SIR    HENRY   MAINE 

of  justice^  cyeoL^ontract  to  which  there  is  a  real  moral 
objection  should  be  worthless  to  the  holder.  It  may  be  said 
there  is  not  sufficient  judicial  material  for  this  in  India.  But 
surely  if  society  in  a  part  of  Bengal  is  so  exceptionally  con- 
stituted as  to  arrest  the  improvement  of  your  general  civil 
procedure,  the  logical  inference  is  that  that  part  of  the 
country  should  be  exceptionally  dealt  with  ;  that  your  judi- 
cial strength  should  be  concentrated  there  ;  and  that  more 
than  usual  facilities  should  there  be  provided  for  scientifically 
administering  the  law.  Many  other  nostrums  are  about,  but 
I  have  a  profound  disbelief  in  all  of  them.  The  only  remedy 
which  I  hold  to  be  sovereign  is  the  application  by  competent 
courts  of  those  tried  and  tested  principles  of  jurisprudence 
which  alone  are  capable  in  matters  of  contract  of  mediating 
between  man  and  man. 

In  1868,  Mr.  Maine  again  discussed  the  subject  of  specific  per- 
formance. The  Indian  Law  Commissioners,  deeming  specific 
performance  to  be  more  allied  to  substantive  law  than  to  procedure, 
had  inserted  sections  dealing  with  the  matter  in  their  draft  code  of 
the  law  of  contract.  Mr.  Maine  dissented  from  that  view,  omitted 
the  sections  from  the  Commissioners'  draft,  and  wrote  the  following 
Minute  in  support  of  his  action  : 

April  9,  1868 

After  very  carefully  considering  the  fourth  report  of  the 
Indian  Law  Commissioners,  and  particularly  the  first  portion 
of  it,  I  cannot  help  feeling  much  uneasiness  on  two  points. 

I  am  afraid,  in  the  first  place,  that  the  report  may  produce 
an  impression  that,  in  omitting  certain  draft  sections  relating 
to  specific  performance  and  injunction  from  a  Bill  which  it 
became  my  duty  to  conduct  through  the  legislature,  I  have 
been  guilty  of  some  discourtesy  towards  the  Commissioners, 
or  some  disregard  of  their  undoubted  claims  to  respect.  The 
Viceroy,  indeed,  and  my  honourable  colleagues  will  not  suspect 
me  of  any  such  lapse  from  duty  and  good  taste,  for  they,  or 
most  of  them,  are  aware  how  earnestly  I  have  striven  to 
prevail  on  the  legislature  to  sanction  the  Commissioners' 
drafts  with  the  minimum  of  change  ;  and  they  will  believe  me 
when  I  say  that,  in  making  this  effort,  I  have  often   had  to 


SPECIFIC   PERFORMANCE  I/I 

■contend  against  criticisms  which  were  at  least  plausible,  and 
to  struggle  with  difficulties  which,  however  slightly  they  may 
be  believed  in  at  home,  are  still  real  and  substantial,  and  not 
the  less  real  and  substantial  because  they  assume  a  form 
somewhat  unlike  that  of  the  obstacles  which  impede  legisla- 
tion in  England.  There  ma}-,  however,  be  readers  of  the 
report  who  have  no  particular  reason  to  give  me  credit  for  the 
strongest  desire  to  give  effect  to  the  recommendations  of  the 
Commissioners.  I  wish,  therefore,  again  to  state  that  the 
omitted  sections  are  at  variance,  both  in  respect  of  substance 
and  in  respect  of  place,  with  certain  provisions  of  the  existing 
Indian  Code  of  Civil  Procedure.  The  fact  that  all  I  have 
done  has  been  to  maintain  against  the  recent  proposal  of  the 
Commissioners  the  law  and  the  arrangement  of  a  code  which 
has  been  seven  years  in  force  in  India,  and  which  even  the 
High  Courts  are  bound  by  their  letters  patent  to  follow,  seems 
to  me  conclusive  on  the  question  of  courtesy  and  deference. 
I  appeal  to  that  fact  on  this  question  alone,  for  I  do  not  deny 
that  there  may  be  good  reason  for  changing  the  law,  or  for 
altering  its  place,  or  for  both. 

There  is  an  impression  of  another  kind  which  may  have 
been  created  in  the  minds  of  my  colleagues,  but  which  I  am 
most  anxious  to  prevent  or  dispel.  The  language  of  the 
Commissioners  may  have  been  affected  by  the  form  of  their 
observations,  contained  as  they  are  in  a  report  addressed 
■directly  to  Her  Majesty  ;  but  whatever  be  the  cause,  this 
language  is  so  unqualified  and  peremptory  as  to  lead  perhaps 
to  a  suspicion  that,  taking  advantage  of  my  official  position, 
and  possibly  of  some  credit  which  may  attach  to  me  of 
having  given  special  attention  to  a  particular  class  of  studies, 
I  have,  in  denying  that  the  proper  place  for  the  omitted 
sections  was  a  code  of  substantive  law,  put  off  on  the  Govern- 
ment and  the  legislature  a  trivial  or  careless  opinion.  I  must, 
therefore,  attempt  to  show  my  colleagues  how  far  my  assertion 
was  one  to  be  disposed  of  in  three  brief  paragraphs.  I  regret 
that  the  discussion  must  necessarily  be  of  a  kind  which  can 
scarcely  be  attractive  to  persons  unfamiliar  with  the  inquiries 
on  which  it  turns. 

The  argument  of  the  Commissioners  is  as  follows  : — 


172  SPEECHES   OF   SIR    HENRY   MAINE 

'  To  enforce  the  specific  performance  of  some  contracts, 
is  impossible  ;  of  others  it  is  inexpedient.  It  is  the  province 
of  a  code  of  substantive  law  to  define  the  rights  and  liabilities 
of  parties  arising  out  of  their  contracts,  and  in  so  doing  to 
specify  what  contracts  may  and  what  shall  not  be  specifically 
enforced.  This  is  no  part  of  procedure.  The  proper  province 
of  procedure  is  to  point  out  the  mode  in  which  effect  is  to  be 
given  to  rights  already  defined,  and  not  itself  to  define  those 
frights.' 

The  distinction  here  indicated  between  rights  and  the 
modes  of  enforcing  them  originated  with  Bentham,  and  is  the 
foundation  of  his  distribution  of  law  into  substantive  and 
adjective.  It  is  the  commonly  received  distinction,  and  it 
undoubtedly  determined  the  arrangement  of  the  New  York 
Code.  If  I  could  bring  myself  to  accept  it  as  rigorously 
correct,  it  is  possible  that  I  could  bring  myself  to  acquiesce 
in  the  conclusion  of  the  Commissioners.  But  on  the  authority 
of  Mr.  John  Austin,  I  decline  (and,  if  my  own  opinion  were 
of  the  least  consequence,  I  might  add  that  I^ave  always 
d__eclined)  to__admit  the  possibility  of  establishing  a  complete 
distinction  between  rights  and  the  modes  of  enforcing  them_; 
and  on  the  same  authority  I  deny  that  any  such  distinction 
can  be  made  a  basis  for  strict  legal  classification. 

Mr.  Austin  is  the  only  writer  on  jurisprudence  whose 
opinions  outweigh  Bentham's  in  the  few  instances  in  which 
they  differ.  Since  he  has  been  quoted  by  the  Commissioners 
as  an  authority  against  me,  it  is  proper  that  I  should  indicate 
by  precise  references  to  his  published  writings  what  his 
opinions  really  were.  While  Austin  (vol.  ii.  p.  291)  was  not 
prepared  to  abandon  expressions  so  convenient  as  substantive 
and  adjective  law,  he  denied  the  validity  of  the  distinction  on 
which  this  distribution  of  law  rests  (vol.  ii.  pp.  45 1,  452  et  seg.), 
assigning,  among  many  conclusive  reasons  for  his  denial,  the 
undoubted  fact  that  there  is  a  large  class  of  rights  which 
cannot  be  completely  distinguished  from  the  procedure  by 
which  they  are  enforced.  The  proper  distribution  of  law, 
apart  from  the  law  of  status  which  occupied  a  peculiar  place 
in  his  system,  Austin  (vol.  ii.  p.  454)  declared  to  be  into  (A) 
law  '  regarding  rights   and   duties  which   do  not  arise  from 


SPECIFIC    PERFORMANCE  1 73 

injuries  or  wrongs,  or  do  not  arise  from  injuries  or  wrongs 
directly  or  immediately,'  and  (B)  law  '  regarding  rights  and 
duties  which  arise  directly  and  exclusively  from  injuries  or 
wrongs.'  A  code  or  a  part  of  a  code  corresponding  to  A 
would  not  widely  differ  from  a  code  of  substantive  law  as 
understood  by  Bentham.  A  code  or  part  of  a  code  corre- 
sponding to  B  would  include  procedure  (Austin,  vol.  ii.  p.  454), 
and  so  far  as  it  related  to  civil  law  would  not  largely  differ 
from  a  code  of  adjective  law  or  civil  procedure.  But  between 
either  code  as  understood  b)^  Bentham,  and  either  code  as 
understood  by  Austin,  there  would  be  differences,  and  it  is 
exactly  on  these  differences  that  the  whole  question  turns  in 
the  present  case. 

So  far,  nothing  probably  seems  more  remote  from  popular 
ideas  than  Austin's  language  and  reasoning.  Yet  the  truth 
is  that  Austin's  distinction  between  the  two  great  departments 
of  law  answers  much  more  nearly  to  popular  conceptions 
than  does  Bentham's.  Austin  explains  that  the  foundation 
of  his  classification  is  the  fact  that  obedience  to  the  law  is 
imperfect  (vol.  ii.  p.  453).  Code  ^  on  Austin's  system  declares 
rights  on  the  assumption  that  everybody  gets  his  rights. 
Code  B  declares  and  defines  rights  and  duties  which  suppose 
that  obedience  to  the  law  is  not  perfect,  and  which  arise 
entirely  from  that  imperfection  of  obedience.  This  is  a  real 
distinction  and  easily  understood  ;  while  it  may  be  doubted 
whether  Bentham's  is  more  than  verbal,  and  when  carried 
into  detail  it  certainly  occasions  not  a  few  perplexities. 

Now,  in  which  code,  A  or  B,  would  Austin  have  placed 
the  specific  performance  of  contracts  ?  His  language  appears 
to  me  not  to  leave  room  for  a  doubt  on  the  point.  He 
describes  (vol.  i.  p.  lOi)  the  right  to  compel  specific  perform- 
ance as  a  '  right  arising  from  a  civil  delict  which  is  an  in- 
fringement of  a  right  in  personaiiL  He  would  therefore  have 
placed  it  in  code  B,  in  which  he  would  also  have  placed  mere 
procedure.  And  here  I  take  the  Hbert}^  of  recalling  to  mind 
the  language  I  employed  in  my  statement  of  objects  and 
reasons  :  '  If  we  suppose  that  a  code  of  substantive  civil  law 
and  a  code  of  civil  procedure  were  being  framed  simul- 
taneously, and  that  the  framer  of  the  codes  had  the  power  of 


1/4  SPEECHES   OF   SIR   HENRY   MAINE 

placing  the  law  of  specific  performance  in  either  code,  there 
cannot  be  much  doubt  that  he  would  consider  it  as  cognate 
to  procedure  rather  than  to  substantive  law.' 

Is  there  anything  in  the  treatment  of  specific  performance 
by  the  Commissioners  which  implies  that  they  take  a  different 
view  of  its  nature  ?  I  venture  to  think  that  there  is  not.  On 
grounds  of  morality  alone  they  cannot  for  a  moment  be  sup- 
posed to  have  intended  to  lay  down  that  the  law  releases  a 
man  from  the  exact  performance  of  his  contracts  in  all  except 
the  very  few  cases  in  which  they  allow  him  to  obtain  a  decree 
for  specific  performance  or  an  injunction  against  a  breach  of 
his  engagement.  They  have  obviously  treated  the  right  to 
specific  performance  as  a  right  arising  out  of  the  actual  or 
threatened  violation  of  the  rights  created  by  contract — as  a 
'right  of  action,'  which,  as  Austin  says  (vol.  ii.  p.  455) 
'  cannot  be  completely  distinguished  from  the  action  or  pro- 
cedure which  enforces  it.'  Of  all  such  rights  it  may  be 
doubted  whether  there  is  any  one  so  dependent  on  the  me- 
chanism of  courts  as  the  right  to  specific  performance.  I  do 
not  think  it  would  be  very  incorrectly  described  as  being,  not 
a  primary  right,  but  a  mere  limitation  of  a  primary  right, 
arising  out  of  the  necessary  or  artificial  imperfections  of 
procedure. 

The  impression  that  Austin  would  have  classed  specific 
performance  with  substantive  law  has  arisen,  I  venture  to 
think,  from  its  not  having  been  perceived  that  his  acceptance 
of  this  very  expression  '  substantive  law  '  was  only  provi- 
sional and  under  protest.  The  passage  which  occurs  at 
vol.  i.  p.  loi  might  perhaps  appear  to  bear  out  this  impres- 
sion, if  Austin  had  written  nothing  more.  But  it  is  only  part 
of  a  syllabus  of  lectures.  The  lectures  themselves  have  been 
more  recently  printed  in  vol.  ii.,  and  they  seem  to  me  to  show 
that  Austin's  views  admitted  of  no  construction  except  that 
which  I  have  put  upon  them. 

I  ought  perhaps  to  anticipate  the  argument  that  there  are 
signs  in  their  draft  chapter  on  contract  that  the  Indian  Law 
Commissioners,  like  the  New  York  Commissioners,  had  ac- 
cepted Bentham's  distinction  between  substantive  and  adjec- 
tive law  in  Bentham's   sense ;   and   that   I  was  accordingly 


SPECIFIC    rERFORMANCE  1 75 

bound  to  maintain  it.  But  surely  I  may  contend  that,  in 
subsequently  quoting  Austin  against  me,  the  Commissioners 
have  justified  my  refusal  to  take  Bentham's  distinction  except 
as  modified  by  his  successor.  It  must  be  remembered,  too, 
that  I  was  not  simply  required  to  place  the  law  of  specific 
performance  in  a  code  to  which  I  ventured  to  think  it  did  not 
properly  belong  ;  I  was  further  required  to  take  that  law  out 
of  a  code  which  is  in  actual  operation,  and  in  which  I  considered' 
it  rightly  placed.  It  would  be  very  uncandid  not  to  add  that 
I  was  glad  of  an  opportunity  of  escaping  from  the  grave 
political  difficulty  in  which  the  proposal  to  enact  the  omitted 
sections  was  sure  to  involve  us. 

I  can  scarcely  doubt  that  I  have  already  wearied  most  of 
those  whose  duty  it  will  become  to  read  this  paper,  and  on 
that  ground  alone  I  hesitate  to  point  out  why  it  is  that  the 
illustration  taken  by  the  Commissioners  from  criminal  law  does 
not,  in  my  humble  judgment,  bear  out  the  desired  conclusion. 
But  I  have  a  further  reason  for  not  travelling  into  this  subject. 
It  is  fully  treated  of  in  Mr.  Austin's  '  Remains  ; '  and  my 
object  in  recording  this  Minute  is, not  to  argue  against  the  Com- 
missioners, but  to  rebut  the  inference  which  the  brevity  of  their 
language  may  suggest  by  appealing  to  an  authority  to  whom 
all  who  have  bestowed  the  least  thought  on  this  class  of 
inquiries  will  bow,  and  to  whom  they  have  themselves  appealed. 

I  have  not  the  same  strong  personal  reasons  for  com- 
menting on  the  last  part  of  the  Commissioners'  report  which 
have  led  me  to  observe  at  such  length  on  the  fifth,  sixth,  and 
seventh  paragraphs.  I  do  not,  of  course,  admit  that  there  is 
justice  in  the  observation  that  all  that  '  is  alleged  against 
the  omitted  sections  as  a  fault  is,  in  effect,  that  under  them 
specific  performance  of  contracts  for  cultivation  cannot  be 
enforced  by  the  imprisonment  of  the  contracting  cultivator  ; ' 
but  I  should  be  the  last  person  to  deny  that  it  is  a  fairly  dis- 
putable point  whether  the  Indian  courts  should  be  invested  with 
extensive  powers  of  decreeing  specific  performance.'  The 
grounds  of  my  own  opinion  have  been  repeatedly  submitted 
to  the  Secretary  of  State  for  India. 

If  I  demur  to  the  assertion  that  the  limitations  of  the 
power  to  compel  specific  performance  characteristic  of  one 


176  SPEECHES   OF   SIR    HENRY    MAINE 

branch  of  English  law  involve  '  principles  of  universal  appli- 
cation,' it  is  not  for  the  purpose  of  controversial  argument. 
Mr.  Austin,  indeed,  had  apparently  a  less  exalted  idea  of  the 
value  of  those  limitations  than  the  Commissioners  ;  since, 
after  promising  to  '  analyse  the  principles  whereon  specific 
performance  is  rationally  compelled  '  — a  promise  no  doubt 
fulfilled,  though  no  traces  remain  of  the  mode  of  fulfilment — 
he  adds,  '  the  caprices  of  the  English  law  with  regard  to 
specific  performance,  and  with  regard  to  the  connected  matter 
of  recovery  in  specie,  I  shall  try  to  explain  historically '  (vol.  i. 
p.  102).  But  it  is  on  the  ground  of  the  practically  dangerous 
consequences  in  India  of  the  Commissioners'  doctrine  that, 
with  all  deference,  I  must  enter  my  protest  against  it. 

The  principles  of  English  law  must,  I  submit,  be  taken 
to  be  the  principles  of  English  law  as  a  whole,  not  of  any  one 
branch  of  it.  Now  it  will  not  be  disputed  that,  in  England, 
the  specific  performance  of  small  contracts  is  compelled,  not 
by  the  civil,  but  by  the  criminal  law  ;  nor  has  there  ap- 
parently been  any  hesitation  in  enforcing  such  contracts  by 
criminal  remedies  on  the  ground  that  the  matters  contracted 
for  amounted  to  a  '  succession  of  acts,  or  the  exercise  of  skill, 
or  the  application  of  personal  labour.'  Nobody  can  doubt 
that  the  Master  and  Servants  Act  of  1867  (Static  &  31 
Vict.  c.  1417*  was  passed  with  the  most  kindly  intentions 
towards  the  classes  affected  by  it.  Yet  what  does  it  amount 
to  but  a  far-reaching  law  of  specific  performance,  ultimately 
enforced  by  three  months'  imprison ment_in  the  Hou.se  of 
Correction  ?  India,  however,  is  a  country  of  small  contracts  ; 
so  that,  if  the  principles  of  English  law  be  of  universal  ap- 
plication, the  case  for  a  general  penal  contract  law  would 
seem  to  be  complete.  Nor  is  this  a  fanciful  conclusion.  The 
argument  of  the  advocates  of  a  penal  contract  law  has,  as  a 
matter  of  fact,  been  that  the  penal  contract  law  did  to  a  very 
great  extent  exist  in  England,  and  that  as  the  'caprices  '  of 
English  law,  in  distinguishing  between  one  small  contract  and 
another,  could  not  be  transferred  to  India,  the  English  law 
transplanted  to  this  country  would  give  a  general  penal 
contract  law.     The  English  Parliament,  they  said,  has  never 

'  See  now  38  &  39  Vic.  c.  S6. 


SPECIFIC    PERFORMANCE  177 

hesitated  to  compel  the  specific  performance  of  small  con- 
tracts by  criminal  penalties,  whenever  the  public  interest  or 
the  interest  of  some  powerful  class  required  it — why  should 
the  Indian  legislature  be  more  squeamish  ? 

But  India,  if  it  is  a  country  of  small  contracts,  is  also  a 
country  over  which  civil  courts  are  comparatively  much  more 
widely  and  generally  diffused  than  in  England,  and  in  which 
the  habit  of  resort  to  the  civil  courts  penetrates  far  more 
deeply  among  the  population  than  it  does  in  England.  It  is 
also  a  country  in  which  there  is  reason  to  believe  that  the 
directions  of  a  court,  if  express  and  specific,  are,  as  a  rule, 
obeyed  without  demur.  Those  who  have  thought  that,  by 
taking  advantage  of  these  peculiarities  to  give  further  extension 
to  a  principle  which  the  English  civil  courts  have  themselves 
been  obviously  labouring  of  late  years  to  extend,  they  could 
prevent  the  perpetual  recurrence  of  a  demand  for  the  coarse 
remedies  of  the  criminal  law,  may  perhaps  deserve  charitable 
construction,  even  should  the  experiment  never  be  tried  or 
fail.  If  the  enlargement  of  the  law  of  specific  performance 
proposed  by  Sir  Henry  Harington  and  myself,  but  condemned 
by  the  Indian  Law  Commissioners,  had  been  carried  into  effect, 
it  was  intended  to  take  steps  for  the  repeal  of  nearly  all  the 
petty  criminal  contract  laws  which  we  have  in  India,  in- 
cluding section  492  of  the  Penal  Code  and  Act  XIII.  of  1859 
(the  Artificers  Act),  now  extended  to  a  great  part  of  the 
country  under  the  power  contained  in  its  fifth  section.  The 
object  of  the  rejected  scheme  was,  in  fact,  virtually  to  transfer 
to  the  civil  courts  the  cognisance  of  the  entire  subject  of 
contract. 

I  should  perhaps  be  doing  myself  some  injustice  if  I  did 
not  state  that,  out  of  the  numberless  questions  raised  by  the 
Commissioners'  drafts,  this  is  the  only  one  of  the  smallest  im- 
portance in  which,  to  the  best  of  my  recollection,  I  have  not 
either  entirely  concurred  with  the  Indian  Law  Commissioners, 
or  waived  my  own  opinion  in  deference  to  theirs.  That  there 
is  some  apparent  presumption  in  differing  from  them,  even  on 
this  question,  I  am  not  prepared  to  deny.  There  is,  however, 
something  to  be  said  in  mitigation  of  an  unfavourable  judg- 
ment.    So  far  as  this  question  is  a  question  of  policy,  it  is 


178  SPEECHES   OF   SIR    HENRY   MAINE 

.probably  the  most  fundamental  of  all  Indian  local  questions, 
(and  one,  therefore,  on  which  a  member  of  the  Government  of 
\n<^\z.  \-w^Y priuid  facie  stand  excused  for  forming  an  inde- 
'pendent  opinion.  So  far  as  it  is  a  question  of  legal  classifica- 
tion, it  is  one  on  which  I  have  bestowed  much  thought,  and 
on  which  I  years  ago  stated  my  views,  both  as  a  writer  and 
as  a  teacher  of  law.  So  far  as  it  is  a  question  of  legal  im- 
provement, I  can  only  plead  my  strong  impression  (though  of 
course  on  such  a  point  my  opinion  has  little  weight  in  com- 
parison with  that  of  the  Commissioners)  that  English  lawyers 
were  coming  to  a  tolerably  general  agreement  that  the  English 
restrictions  of  the  right  to  specific  performance  were  in  a  high 
degree  artificial  and  arbitrary,  or  (to  use  Mr.  Austin's  expres- 
sion) '  capricious.' 

This  minute  is  recorded  mainly  for  the  purpose  of  re- 
butting certain  inferences  or  suspicions  which  might  be 
suggested  by  the  Commissioners'  language.  Meantime,  it 
would  be  most  indecorous  that  I  should  continue  to  question 
the  Commissioners'  views  of  the  proper  place  for  their  sections, 
and  it  would  be  most  unreasonable  that  I  should  ask  the 
Secretary  of  State  to  decide  such  a  matter  authoritatively. 
Accordingly,  as  soon  as  the  fourth  report  was  officially  com- 
municated to  this  Government,  I  requested  the  committee  of 
the  Legislative  Council  to  which  the  Bill  embodying  the  law 
of  contract  has  been  referred  to  consider  the  omitted  sections 
as  fully  and  fairly  as  if  they  were  included  in  the  Bill.  The 
committee  complied  with  my  request,  and  two  of  my  honour- 
able colleagues,  Mr.  Massey  and  Mr.  Strachey,  have  been 
kind  enough  to  record  a  statement  that  I  spared  no  effort  to 
do  justice,  on  their  merits,  to  the  Commissioners'  proposals. 
The  result  of  the  discussion  in  committee  will  no  doubt  be 
separately  reported  to  the  Secretary  of  State. 


ABOLITION    OF   GRAND   JURIES  I79 

ABOLITION  OF  GRAND  JURIES 

November  18,  1S64. 

■Grand  juries  had  long  existed  in  Calcutta,  Madras,  and  Bombay, 
and  had  become  as  obsolete  and  useless  in  India  as  they  are  in 
England.  In  those  towns,  indeed,  grand  juries  were  worse  than  use- 
less ;  they  were  often  obstructions  to  justice,  and  the  grand  jury  list 
seriously  depleted  the  list  of  petty  jurors. 

In  1864,  therefore,  the  Government  of  India  determined  to 
abolish  them,  and  to  make  the  changes  in  the  law  necessitated  by 
such  abolition.  For  this  purpose  the  Bill  referred  to  in  the  following 
speech  was  introduced  and  became  law  as  Act  XIII.  of  1865.' 
Under  this  Act  the  committing  magistrate  delivers  to  the  Clerk  of  the 
Crown  an  instrument  of  charge  signed  by  him,  and  stating  the  offence. 
The  Clerk  of  the  Crown  considers  the  charge,  and  may  amend  or 
add  to  it.  The  charge  is  then  recorded,  and  the  person  charged  is 
entitled  to  a  copy  of  the  charge  and  of  the  examinations  of  the 
■witnesses  upon  whose  depositions  he  has  been  committed.  Upon  a 
charge  so  recorded  he  is  deemed  to  have  been  brought  before  the 
High  Court  in  due  course  of  law,  and,  subject  to  certain  provisions 
as  to  unsustainable  charges,  he  is  arraigned  and  tried.  But  when  any 
charge  shall,  before  the  person  charged  is  arraigned,  appear  to  the 
judge  of  the  High  Court  who  would  in  ordinary  course  try  the  same 
to  be  clearly  unsustainable,  an  entry  to  that  effect  may  be  made  on 
the  charge  by  the  judge.  Such  entry  has  the  effect  of  a  nolle  prosequi 
upon  the  charge,  but  shall  not  operate  as  an  acquittal  until  three 
years  have  elapsed,  when,  if  no  fresh  charge  has  been  brought  on  the 
same  matter,  the  person  charged  shall  be  considered  as  having  been 
acquitted.  The  power  of  making  such  an  entry  is  the  substitute  for 
the  functions  of  a  grand  jury. 

After  introducing  the  Bill,  Mr.  Maine  recommended  the  Council 
to  refer  it  to  a  select  committee  for  consideration,  and,  if  necessary, 
amendment.     He  then  proceeded  as  follows  : 

Meantime  I  shall  have  the  opportunity  of  stating  the  real 
case  against  grand  juries  in  India,  which  I  confess  I  omitted 
to  do  in  the  statement  of  objects  and  reasons  appended  to  the 
Bill.  The  truth  is,  I  took  for  granted  that  in  comparatively 
small  and  very  busy  societies,  a  system  which  occupied  the 
best  heads  of  a  community  with  an  inquiry  conducted  under 
such  disadvantages  as  to  defeat   itself,  and  confided   the   mo- 

'  Repealed  and  re-enacted  by  Act  X.        is  in  the  Code  of  Criminal  Procedure, 
of  1875.     The  present  law  on  the  sub-       Act  X.  of  1882,  sees.  273,  403,  expl. 
ject  of  entries  on  unsustainable  charges 


l80  SrEECHES   OF   SIR   HENRY   MAINE 

mentous  business  of  trying  men  for  their  lives  to  the  residue,, 
was  self-condemned.  But  one  of  the  things  one  learns  in  India 
is  to  take  nothing  for  granted  ;  and  I  will  now  attempt  to  say 
what  grand  juries  really  are,  both  in  England  and  in  India. 

In  the  absence  of  any  formal  expression  of  opinion,  I  have 
only  the  presentments  of  the  grand  juries  of  two  of  the  presi- 
dency towns.  I  may  say,  however,  that  the  papers  which 
have  already  been  sent  in  show  that  a  large  majority  of  the 
barrister  judges  of  the  High  Courts  are  in  favour  of  the  Bill.  I 
have  heard  something  of  a  presentment  by  the  grand  jury  of 
Bombay.  But  as  I  have  not  actually'  seen  it,  I  will  not  say 
anything  about  it.  I  am,  however,  able  to  say,  on  the  autho- 
rity of  my  honourable  friend  Mr.  Anderson,  that  the  Bill  has 
been  received  with  favour  by  all  classes  of  the  Bombay  com- 
munity. Here,  however,  is  the  presentment  of  the  grand  jury 
of  Madras. 

Mr.  Maine  then  read  the  presentment,  which  was  strongly  in  favour 
of  the  Bill.     He  proceeded  as  follows  : 

And  here  is  the  presentment  of  the  grand  jury  of  Calcutta, 
which  certainly  differs  considerably  from  that  of  the  grand 
jury  of  Madras. 

'  The  grand  jury  beg  leave  to  present  that  they  have  learned  with 
extreme  regret,  as  well  from  your  Lordship's  charge  as  the  public 
journals,  that  a  Bill,  having  for  its  object  the  abolition  in  India  of 
the  institution  of  the  grand  jury,  has  been  introduced  by  Mr.  Maine, 
and  obtained  the  sanction  of  the  Government,  and  is  therefore  likely 
to  become  law.  The  grand  jury  cannot  separate  without  giving  an 
emphatic  expression  of  their  unanimous  opinion  that  such  an  inter- 
ference with  a  time-honoured  institution  is  premature  and  unwar- 
ranted. Whatever  may  be  the  case  in  England,  where  the  institution 
in  question  is  still  maintained  in  all  its  integrity,  the  time,  in  the 
opinion  of  the  grand  jury,  has  certainly  not  yet  come  when  in  India 
the  grand  jury  is  no  longer,  to  use  your  own  words,  "a  necessity  for 
the  purpose  of  guarding  the  subjects  from  oppression  on  the  part  of 
the  executive  government,  to  protect  the  individual  from  the  aggres- 
sive conduct  of  men  in  power,  whose  purposes  would  be  suiS- 
ciently  met  by  the  fact  of  the  obnoxious  person  being  placed  on  trial  in 
open  court  on  a  criminal  charge."  The  grand  jury  think  that  this  has 
been  sufficiently  demonstrated  by  actual  cases  of  no  remote  occur- 
rence ;  nor  is  there  any  guarantee  that  here  in  India  we  may  not  again 
be  placed  in  such  times  (to  quote  once  more  from  your  Lordship's 
charge)  "  of  great  public  commotion  and  excitement,  when  it  may 


ABOLITION    OF   GRAND   JURIES  l8l 

be  necessary  for  the  executive  to  use  extraordinary  and  indeed  des- 
potic powers  against  the  Hberty  of  the  subject,  under  circumstances 
■which  would  imply  that  the  magistrates  ought  not  to  be  trusted  un- 
checked in  the  exercise  of  arbitrary  power."  The  grand  jury  are 
further  of  opinion  that  the  object  of  the  presentment  of  a  former 
grand  jury  has  been  sufficiently,  and  to  all  intents  and  purposes,  met 
by  the  extension  of  the  summary  jurisdiction  of  the  police  magis- 
trates. And  believing,  as  they  do,  that  the  measure  in  question,  if 
carried  into  effect,  would  be  fraught  with  danger  to  the  liberty  of  the 
subject,  they  beg  most  respectfully  to  present  that,  in  their  judgment, 
the  Bill  ought  not  to  be  passed  into  law.' 

Now,  sir,  I  trust  that  the  highly  respectable  gentlemen  who 
signed  this  presentment  will  not  be  offended  if  I  say  that  its 
value  is  rather  rhetorical  than  logical.  I  do  not  wish  to  criti- 
cise what  is  evidently  more  an  expression  of  feeling  than  any- 
thing else.  But  there  are  some  matters  which  I  cannot  help 
observing  in  it.  There  are  some  things  in  it  which  I  cannot 
understand.  In  the  first  place,  I  do  not  think  that  the  grand 
jury  rightly  understood  the  learned  judge,  when  he  told  them 
that  their  functions  prevented  Government  from  putting  ob- 
noxious persons  on  their  trial,  or  rather  they  imagined  him  to 
be  giving  a  more  minute  exposition  of  the  law  than  he  in- 
tended. For,  sir,  it  does  happen  that  the  Government  already 
possesses  this  terrible  power  of  gaining  its  wicked  ends  by 
sending  men  to  be  tried  at  once  by  the  petty  jury.  Under  an 
English  statute,^  which  this  Council  cannot  repeal,'-  the  Govern- 
ment has  the  power  of  filing,  through  the  Advocate  General, 
what  are  called  informations  cx-officio,  in  every  case  in  which 
it  may  choose  to  consider  (to  use  the  words  of  a  legal  autho- 
rity) that  '  an  enormous  misdemeanour  affecting  the  common- 
wealth or  public  peace  '  has  been  committed.  Assuming, 
therefore,  that  your  Excellency's  Government  were  capable  of 
so  insane  an  act,  there  is  nothing  to  prevent  you  from  putting 
all  the  printers  of  the  newspapers  in  Calcutta  on  their  trial  for 
seditious  libel,  even  though  you  knew  them  to  be  innocent,  and 
the  grand  jury  could  not  save  them.  Again,  I  am  unable  to 
reconcile  the  argument  of  the  grand  jur)-  that  the  greatest  of  all 
calamities  is  to  be  charged  with  an  offence  without  reference  to 

'  53  Geo.  III.,  c.  105,  s,  103.  enacted  by  Act   X.    of   1S75,  sees.   2, 

^  This  is  a   slip,   and    the   section       144,  146. 
referred  to  has  been  repealed  and  re- 


1    tA-^i'-y-^^ 


182  SPEECHES   OF   SIR   HENRY   MAINE 

ultimate  acquittal,  and  the  argument,  in  which  both  this  and 
the  former  jury  seemed  to  coincide,  that  a  large  addition  should 
be  made  to  the  summary  jurisdiction  of  the  magistrates.  For 
if  the  disgrace  consists  in  the  mere  accusation  without  refer- 
ence to  the  final  establishment  of  innocence,  surely  it  is  as  easy 
to  disgrace  a  man  by  charging  him  before  a  magistrate  with  a 
crime  which  is  punishable  with  hard  labour  and  a  flogging,  as 
by  charging  him  with  a  crime  which  is  punishable  with  penal 
servitude  or  death.  Of  course  it  is  a  matter  of  taste,  but  if  I 
were  in  the  predicament  of  having  a  false  charge  brought 
y  against  me  by  men  in  power,  though  I  knew  I  should  be  ac- 
quitted of  it,  and  had  my  choice  of  the  accusation,  I  confess  I 
should  prefer  treason  to  larceny.  But  the  question  which  I 
should  really  like  to  ask  these  gentlemen  who  signed  the  pre- 
sentment— some  of  them  well-known  members  of  the  mercan- 
tile community  of  Calcutta — is  whether  they  are  not  satisfied 
to  dispense  with  the  inquiry  before  the  grand  jury  in  cases  in 
which  they  are  greatly  more  interested  than  in  criminal  charges?' 
If  a  merchant  of  Calcutta  were  in  danger  of  being  involved 
by  a  malignant  enemy  in  a  disagreeable  trial,  I  venture  to  ask 
my  honourable  friends  at  the  other  end  of  the  table  whether  it 
would  be  more  likely  to  be  a  civil  or  a  criminal  trial  ?  I  fancy 
I  have  observed  that  the  number  of  personal  cases — cases  in 
which  questions  of  commercial  honour  and  probity  are  involved 
— coming  before  the  civil  courts  of  Calcutta  is  larger  than 
comes  before  any  jurisdiction  of  similar  extent  at  home.  It 
seems  to  me  that  the  risk  of  being  subjected  by  an  unscrupu- 
lous private  enemy  to  what  I  may  call  a  civil  charge  is,  in 
Calcutta,  at  least  appreciable.  In  the  trial  of  such  a  charge 
a  man's  good  name  and  mercantile  credit,  his  present  fortune, 
and  future  prospects  may  be  at  stake  —  in  such  a  case,  do  you 
demand  a  trial  by  grand  jury  ?  No,  you  do  not  even  ask  for 
a  common  jury.  You  are  satisfied  with  the  fiat  of  a  single 
judge,  and  it  seems  to  me  that  the  verdict  of  this  one  man  is 
more  respected  here  than  the  award  of  a  jury  would  be  at  home. 
But,  sir,  of  course  the  only  complete  answer  to  the  pre- 
/.  sentment  of  the  Calcutta  grand  jury  will  consist  in  showing 
\vhat  a  ^and_iurx  is,  not  only  in  England,  but  in  India. 
7'    Everybody,  I  suppose,  is  aware  that  the  grand  jury  was  origi- 


ABOLITION    OF   GRAND   JURIES  183 

nally  a  body  which  more  nearly  resembled  an  assembly  of  wit-    (if 
nesses  than  what  we  should  now  call  a  jury.      It  consisted  of  I'^'C 
the  principal   freeholders  of  the  county,  summoned   by   the 
sheriff  and  empowered  to  declare  all   matters  known  to  itself 
and  affecting   the  public  comfort  or  peace.     The   most  cha-. 
racteristic  relic  of  its  ancient  condition  is  its  power   to   make) 
presentments  of  nuisances,  in  order  that  they  may  be  abated.) 
Now,  considering  that  Calcutta  probably  contains  more  choice 
samples  of  every  nuisance  known  to  the  law  than  any  city  in- 
habited by  Europeans,  if  I  had  found  that  the  grand  jury  of 
Calcutta  had  exhibited  the  same  activity  which  I  am  told  the      cy 
grand  jury  at  Bombay  has  shown,  and  had   been  extraordi-  ' 

narily  watchful   and   vigilant  in  the  presentment  of  its  nui-  ^ 

sances,  I  should  have  said  that,  whatever  were  its  anomalies, 
there  was  an  argument  for  preserving  it.  But  the  Calcutta 
grand  jury  has  this  singularity,  that  it  has  grown  more  in- 
active in  proportion  as  the  city  has  grown  worse.  About  1 8 1 8 
it  seems  to  have  been  in  the  habit  of  making  presentments  on 
those  matters  which  have  lately  attracted  public  attention. 
But  of  late  years  it  has  made  none.  I  have  here  an  abstract 
list  of  presentments — there  are  a  good  many  about  1857  and 
1859 — there  are  some  to  the  effect  that  the  '  arm  of  justice 
has  been  paralysed  ' —  nothing  relating  to  the  general  health 
of  the  city.  ^ 

I  presume,  therefore,  I  can  leave  out  of  account  the  ser- 
vices of  the  grand  jury  as  a  custodian  of  public  health,  and 
pass  to  its  function  as  a  judicial  Jbqdy.  What,  then,  is  a  grand 
jury  considered  from  a  judicial  point  of  view  ?  Not,  I  mean, 
a  Calcutta  grand  jury  solely,  but  a  grand  jury  in  England, 
or  in  any  part  of  the  British  dominions.  First  of  all,  it  is  a 
body  of  men  so  numerous,  that  under  almost  any  conceivable 
conditions  it  would  be  unfitted  calmly  to  sift  evidence.  For  it» 
consists  ordinarily  of  twenty-three  persons  :  and  that  comes( 
dangerously  near  the  point  at  which  the  instincts  of  a  crowd) 
take  the  place  of  deliberation. 

Then  after  having  so  constituted  it,  you  proceed  to  deprive 
it  of  all  the  aids  which  modern  jurisprudence  considers  essen- 
tial to  the  discovery  of  truth.  You  deprive  it  of  the  whole- 
some check   of  publicity  ;  for  since  the   Star  Chamber  was 


t 


184  SPEECHES   OF   SIR   HENRY   MAINE 

abolished  it  is  the  only  secret  tribunal  known  to  English  in- 
stitutions. Next,  you  take  away  the  rule  of  unanimity,  which, 
though  no  doubt  objectionable  in  its  application  to  small  juries, 
such  as  those  of  our  Code  of  Criminal  Procedure,  is  in  its  appli- 
cation to  large  juries  a  valuable  curb  on  the  tyranny  of  the 
majority.  You  take  away  that  sustained  guidance  of  the 
judge  without  which  even  real  trial  by  jury — that  is,  trial  by 
petty  jury — would  be  absurd.  You  take  away  all  chance  of 
its  applying  the  rules  of  evidence  by  the  perpetual  exemption 
of  practising  lawyers  ;  and  then,  as  if  you  had  not  done  enough 
for  it,  you  remove  the  means  of  cross-examining  the  witnesses 
by  comparing  the  statements  which  they  have  made  at  dif- 
ferent times,  for  the  grand  jury  does  not  see  the  depositions. 
And  after  all  is  done,  you  reduce  its  functions  (and  in  this, 
perhaps,  you  act  consistently)  to  a  simple  guess  at  a  proba- 
bility, for  it  only  hears  one  side  of  the  case. 

Well,  sir,  since  grand  juries  are  so  constituted,  and  since 
such  are  their  functions,  I  have  always  thought,  even  in  Eng- 
land, that  though  it  includes  all  the  persons  in  the  community 
who  are  best  able  to  form  a  judgment  upon  evidence,  and 
though  in  most  cases  I  doubt  not  that  it  uses  its  powers  con- 
scientiously, nevertheless  its  inherent  disadvantages  are  such 
/that  a  grand  jury  is  an  obstruction  to  justice,  and  therefore  I 
/entirely  agree  with  that  metropolitan  grandjury  which  has  for  a 
(series  of  years  presented  itself  as  a  nuisance.  But  I  must  admit 
that  in  England,  although  criminal  juries  are  notoriously  inferior 
to  civil  juries,  yet  the  field  from  which  the  two  lists  of  juries 
are  taken  is  so  large  that  the  system  is  perhaps  tolerable.  But 
how  does  it  work  in  India  ?  Well,  if  I  never  left  my  own  house 
and  my  own  room,  I  should  be  able  to  say  how  it  worked  ;  for 
it  happens  that  no  complaints  come  so  frequently  before  mem- 
/bers  of  Government  as  complaints  of  clerks  in  our  public  offices 
jof  the  extreme  frequency  with  which  they  are  called  to  serve  on 
\3etty  juries,  and  of  the  annoyance  to  themselves  and  hindrance 
to  public  business  caused  by  the  interruption.  I  mention  this 
because  it  shows  the  unfairness  with  which  the  burden  and  heat 
of  assisting  in  the  administration  of  criminal  justice  are  thrown 
upon  one  class  under  the  present  system,  and  also  because  it 
illustrates  the  value  of  the  argument  that  grand  juries  should 


ABOLITION   OF   GRAND   JURIKS  1 85 

be  retained  as  a  protection  against  the  machinations  of  a  too 
powerful  Government.  We  are  told  that  grand  juries  must 
be  preserved,  lest  we  should  make  tools  of  the  covenanted 
servants  on  the  bench  ;  and  the  effect  is  to  send  men  to  be 
tried  for  their  lives  by  juries  largely  composed  of  the  uncove- 
nanted  servants  in  our  offices.  Of  course  I  know  that  those 
gentlemen  give  honest,  independent  verdicts.  But  surely,  if 
your  Excellency's  Government  were  capable  of  the  iniquity 
imputed  to  it  by  the  Calcutta  grand  jury,  it  stands  to  reason 
that  it  had  better  begin  with  those  officers  who,  so  to  speak, 
are  under  its  eye  and  under  its  hand. 

My  case,  however,  rests  on  those  opinions  of  Mr.  Ritchie's 
which  have  been  circulated  through  the  Council.  I  am  myself 
open  to  the  remark  that  I  have  not  seen  the  practical  work- 
ing of  the  system  in  India.  But  here  is  Mr.  Ritchie  giving  the 
result  of  an  experience  of  twenty  years.  I  never  saw  Mr. 
Ritchie.  But  there  is  such  an  unanimity  of  testimony  about 
him,  that  I  cannot  doubt  that  he  was  a  man  of  remarkable 
moderation,  fairness,  and  judgment.  He  was  the  incontestable 
leader  of  the  Calcutta  Bar,  and  he  wrote  these  papers  while 
still  in  a  situation — that  of  Advocate  General — which,  while 
it  enabled  him  to  see  those  cases  from  the  point  of  view  of  the 
Government,  did  not  cut  him  off  from  sympathy  with  the 
opinions  of  the  unofficial  community.  Here  is  the  net  result 
of  his  observations.  After  reciting  a  list  of  miscarriages  of 
justice  lamentable  to  read,  caused  sometinies Jbj^  the  _petty 
jury  and  sometimes  by  the  grand,  but,  as  he  admits,  and  I 
readily  allow,  attributable  not  to  the  persons  but  to  the  system 
— in  the  case  of  the  grand  jury  to  the  disadvantages  under 
which  it  is  placed,  in  the  case  of  the  petty  jury  to  the  with- 
drawal from  it  of  those  best  able  to  assist  it  to  a  conclusion — he 
deduces  from  this  the  inference,  which  he  presses  repeatedly 
on  the  Government,  that  grand  juries  ought  to  be  abolished, 
and  grand  and  petty  jurors  fused.  I  will  read  the  passages  of 
which  the  words  are  nearly  identical  with  those  of  Sir  Colley 
Scotland  to  the  grand  jury  of  Madras. 

'  The  result  of  a  pretty  long  observation  of  the  practical  working 
of  the  grand  jury  in  this  country  is,  that  the  constitution  of  this  tri- 
bunal appears  to  me  wholly  unadapted  to  the  wants  and  circum- 


l86  SPEECHES   OF   SIR    HENRY   MAINE 

stances  even  of  the  European  portion  of  the  community  ;  that  it  is 

unable  to  afford  any  safeguard  to  the  innocent,  while  it  often  uncon- 

consciously  serves  as  an  obstruction  to  the  due  course  of  justice  ;  and 

ithat  the  only  purpose  for  which  it  can  now  be  considered  as  of  any 

)real  use — that  of  imposing  some  check  upon  private  prosecutions — 

Miiay  be  much  better  attained  in  a  different  way. 

'  I  would  therefore  respectfully  urge  upon  the  Government  the 
expediency  of  taking  steps  towards  the  abolition  of  this  body,  and  the 
substitution  of  such  proceedings  as  I  have  above  pointed  out.  Such 
substitution  is  quite  within  the  competency  of  the  Legislative  Council, 
to  whose  attention,  I  think,  the  subject  may  be  submitted  with  advan- 
tage, without  waiting  to  mature  more  extensive  changes  in  the  criminal 
law  procedure  applicable  to  British  subjects. 

'  I  am  sure  that,  in  the  strictures  above  made,  I  shall  be  under- 
stood to  refer  to  the  defective  character  of  the  institution,  and  not  to 
the  class  or  individuals  composing  it.  For  that  class  and  for  many 
of  the  individual  members  of  it  I  have  a  very  high  respect.  And  one 
great  improvement  in  jury  trials  in  this  country  which  I  anticipate 
from  the  change  I  advocate,  is  that  those  gentlemen  will  be  thereby 
released  from  duties  which  are  practically  useless,  and  that  their  ser- 
vices may  be  employed  in  the  far  more  important  functions  of  jury- 
men at  the  trial.  From  an  union  of  the  class  of  grand  jurymen  with 
those  now  called  petty  jurymen,  whereby  the  high  intelligence,  posi- 
tion, and  independence  of  the  former  will  be  brought  to  bear  upon 
criminal  trials  in  the  Supreme  Courts,  I  think  very  valuable  results- 
may  be  expected.  The  actual  loss  of  time  to  those  gentlemen  need 
not  probably  be  greater  than  it  is  at  present,  as  the  proportion  sum- 
moned upon  each  jury  need  not  be  large.  And  it  may  be  reasonably 
hoped  that  the  time  thus  taken  up,  even  if  longer  than  at  present,  will 
be  cheerfully  bestowed,  as  the  class  from  whom  it  will  be  required 
are  those  most  interested  in  preserving  jury  trials  in  this  country,  and 
consequently  in  raising  the  character  of  juries.  If  this  change  be 
effected,  the  service  upon  juries  will  be  looked  on  by  the  pubhc  with 
more  respect,  and  the  verdicts  of  juries  will  command  more  general 
confidence  than  at  present.' 

Those,  then,  are  Mr.  Ritchie's  views.  His  opinion  and 
his  facts  coincide  so  exactly  w^ith  those  which  I  could  have 
predicted  a  priori,  that  I  have  not  the  slightest  doubt  of  the 
correctness  of  either  the  one  or  the  other. 

I  have  now  to  address  myself  to  the  arguments  which  I 
have  heard  or  read  for  maintaining  the  grand  jury.  It  is  said 
that  the  grand  jury  is  a  protection  to  an  innocent  man  falsely 
accused,  especially  when  he  is  the  victim  of  unscrupulous  en- 


ABOLITION    OF   GRAND   JURIES  1 8/ 

mit^  whether  that  of  a  private  adversary,  or  of  men  in 
power,  or  of  the  magistrate.  I  do  not  deny  that  the  grand 
jury  may  sometimes  release  an  innocent  man,  for  if  you  let  a 
man  off  it  is  always  possible  that  he  may  be  innocent.  But 
I  say  that  the  case  in  which  it  will  most  rarely  occur  will  be 
that  of  an  innocent  man  oppressed  by  an  enemy.  To  assume 
that  the  grand  jury  can  protect  you  from  the  false  accusation 
of  an  enemy,  is  to  assume  not  only  that  your  enemy  is  un- 
scrupulous but  that  he  is  a  fool  ;  for,  sir,  anybody  can  get  up 
a  colourable  />rvnd /aa'e  case — at  least  I  hope  we  may  claim 
that  credit  for  the  Government — and  before  a  fair-looking/r/wrt 
facie  case,  if  the  grand  jurors  obey  their  oaths,  the  grand  jury 
is  helpless.  Does  it  not  strike  the  Council  that  the  most  dan- 
gerous charges  are  those  which  are j^n'/ua /ade  impregnable? 
Suppose  that  some  unlucky  combination  of  events,  or,  what  I 
am  afraid  is  far  from  impossible  in  this  country,  some  artful 
conspiracy,  involved  an  innocent  man  in  a  criminal  accusa- 
tion ;  surely  the  chances  are  that  the  case  on  the  face  of  it  will 
be  perfect,  the  witnesses  will  have  concocted  their  story,  and 
all  the  documents  bear  the  stamp  of  authenticity.  In  such  an 
event,  the  vindication  of  innocence  will  depend  exactly  on 
those  instrumentalities  which  the  grand  jury  never  has  at  its 
command — on  the  cross-examination  of  the  witnesses,  as  to 
facts  known  only  to  the  accused  and  therefore  unknown  to 
the  grand  jury  ;  on  the  strength  of  the  case  for  the  defence, 
which  the  grand  jury  never  hears,  and  on  the  balancing  of  fact 
against  fact  by  the  judge  whom  the  grand  jury,  through  the 
important  part  of  the  inquiry,  never  see.  The  truth  is,  that 
innocent  men  unjustly  accused  must  place  reliance  entirely  on 
the  petty  jury  and  not  on  the  grand,  and  the  direct  effect  of 
the  system  is  to  starve  and  weaken  the  petty  jur}-.  In  truth, 
unless  it  could  be  accounted  for  historically  the  s}-stem  would 
be  one  of  the  most  unintelligible  that  ever  existed.  It  is  strong> 
at  the  wrong  point  and  weak  at  the  wrong  point ;  and,  if  it  were/ 
worth  while  reforming  it,  the  only  sensible  way  of  doing  so\ 
would  be  to  turn  it  upside  down,  and  give  the  functions  of  the^ 
petty  jury  to  the  grand  jury,  and  those  of  the  grand  jury  to 
the  petty. 

I  see  it  further  jajd,  that  many  of  the  magistrates  ai^e^jn- 


1 88  SPEECHES   OF   SIR   HENRY   MAINE 

competent_andL prejudiced,  and  make  bad  commitments.  Now, 
sir,  it  is  one  of  the  most  characteristic  results  of  the  grand  jury 
system  that  it  exactly  prevents  our  knowing  the  facts  which 
are  here  alleged.  Whether  the  commitments  of  the  magis- 
trates in  India  are  generally  bad,  or  whether  any  of  them  are 
bad,  are  entirely  matters  of  opinion  and  conjecture.  The  cases 
are  disposed  of  in  the  darkness  of  the  grand  jury  room.  Of 
course,  the  grand  jury  says  that  it  is  right,  and  occasionally 
makes  emphatic  presentments  that  it  is  right.  But  that  does 
not  prevent  another  large  class  from  asserting  with  equal  posi- 
tiveness  that  the  grand  jury  was  entirely  wrong.  The  public 
is  not  let  into  the  secret,  and  who  is  to  decide  .''  I  can  only 
say  that  my  own  inquiries  have  elicited  nothing  better  than 
positive  contradictory  assertions.  And  there  is  great  evil  in 
this.  It  is  the  duty  of  the  Local  Government  to  watch  for  evi- 
dence of  incompetence  or  prejudice  amongthe  judicial  officers, 
land,  if  necessary,  to  rebuke  or  remove  them.  Now  a  trial  in 
the  High  Court  throws  such  a  flood  of  light  on  all  concerned 
in  it,  that  it  is  greatly  to  be  regretted  that  this  system  deprives 
the  Local  Government  of  most  valuable  facilities  for  forming  a 
judgment  on  the  real  standard  of  capacity  among  its  judicial 
servants.  Here,  too,  are  some  remarks  of  Mr.  Ritchie's  on 
another  of  the  fruits  of  this  secrecy  : 

'  Not  the  least  evil  attending  this  state  of  things  is  the  utter  un- 
certainty as  to  what  has  taken  place  before  the  grand  jury,  and  the 
suspicion  to  which  both  they  and  the  witnesses  are  exposed.  Whether 
the  .witnesses  have  kept  back  the  truth  ;  whether  they  have  boldly 
sworn  to  the  contrary  of  what  they  deposed  to  before  the  magistrate  ; 
whether  the  grand  jury  have  been  in  a  hurry  to  get  away,  and  have 
not  had  the  patience  thoroughly  to  investigate  the  case  ;  whether  they 
have  mistaken  the  nature  of  their  duties,  and  thought  they  were  bound 
to  ignore  a  Bill  unless  they  were  prepared  conclusively  to  convict ;  or 
whether  they  were  carried  away  by  prejudice  or  sympathies,  no  human 
means  can  detect,  and  the  law  does  not  permit  us  to  inquire.  And 
yet  any  one  of  these  alternatives  may  be  the  true  one  ;  and  the  grand 
jury  and  the  witnesses  are  thus  placed  in  the  unfair  position  of  being 
open  to  a  suspicion  which  may  be  as  unfounded  regarding  the  one  as 
regarding  the  other,  which  is  of  itself  disastrous  to  the  administration 
of  justice.' 

So  far  as  I  myself  can  form  an  opinion  on  a  matter  about 
Avhich  I  confess  that  all  is  dark,  I   am   inclined  to  think  that 


ABOLITION    OK   GRAND   JURIES  1 89 

the  presumption  is  against  the  grand  jury :  in  fact,  the  very 
secrecy  itself  is  a  ground  for  such  presumption.  The  commit- 
ments to  the  High  Courts  in  the  presidency  towns  are  practi- 
cally made  either  by  trained  lawyers  or  by  men  whose  every- 
day business  is  to  sift  evidence.  As  regards  them,  I  should 
be  disposed  to  apply  the  maxim  aiiqiie  in  arte  sua  credendum  ; 
and  if  the  grand  jury  differs  from  them,  to  say  that  the  chances 
are  that  the  magistrate  is  right  and  the  grand  jury  wrong.  As 
to  the  IMufassal  magistrates,  I  cannot  forget  that  Mr.  Justice 
Peterson,  in  spring,  went  even  out  of  his  way  to  compliment 
the  Bengal  magistrates  on  the  way  they  prepared  their  com- 
mitments ;  and  the  Chief  Justice  of  Madras,  in  his  charge  to 
the  grand  jury,  declares  himself  satisfied  with  the  Mufassal 
commitments  in  that  presidency. 

However,  sir,  to  obviate  the  least  chance  of  injury  being 
done  by  arraigning  a  man  against  whom  not  even  a  prima 
facie  case  has  been  established,  I  am  willing  to  consider  in 
committee  a  plan  which,  I  have  reason  to  believe,  commends 
itself  to  several  of  the  judges  of  the  High  Court.  If  the  judge, 
on  reading  the  depositions,  thinks  that  no  prima  facie  case  is 
disclosed,  I  do  not  object  to  giving  him  power  to  examine  the 
witnesses  in  an  informal  manner,  and  then,  if  upon  the  deposi- 
tions and  the  evidence  he  thinks  a  conviction  impossible,  to 
prevent  the  accused  from  being  arraigned,  and  order  his  dis- 
charge. That,  after  all,  is  pretty  much  what  he  does  now  ; 
for,  though  the  grand  jurors  are  on  oath,  I  suppose  it  is  no 
great  secret  that,  in  ninety-nine  cases  out  of  a  hundred,  the 
bills  which  they  ignore  are  those  on  which  the  judge  has  thrown 
a  doubt  in  his  charge.  I  do  not,  however,  wish  this  to  be  quite 
a  hole-and-corner  proceeding  ;  and,  therefore,  when  a  judge 
releases  a  prisoner,  I  w^ould  place  the  judge  under  an  obliga- 
tion to  report  the  case  to  Government,  and  state  his  reasons 
for  the  course  he  has  taken. 

But,  sir,  unless  arguments  are  presented  to  me  which  have 
not  yet  occurred  to  my  mind,  further  than  that  I  cannot  go, 
speaking  for  myself  as  an  individual  member  of  the  Govern- 
ment. Though  this  is  in  itself  a  little  question,  a  great  ques- 
tion is  plainly  implicated  with  it.  All  of  us  occasionally  see 
complaints    from    the  European   community   that   in    public 


IpO  SPEECHES   OF   SIR    HENRY   MAINE 

matters  their  existence  and  importance  are  not  sufficiently- 
recognised.  But  I  think  the  Government  may  call  upon  that 
community  to  recognise  the  facts  which  are  implied  in  its  ex- 
istence. Its  existence,  its  importance,  and  its  growing  power 
are  all  facts  :  it  is  a  fact  that  whole  provinces,  such  as  Assam, 
Cachar,  and  S}'lhet,  are  getting  to  belong  to  it  in  the  same 
sense  that  Australia  belongs  to  the  Australians.  But  there  are 
facts  on  the  other  side.  With  this  great  multiplication  of 
Europeans,  there  has  come,  as  unfortunately  there  always  does 
come,  a  great  increase  of  European  crime.  How  is  it  to  be 
dealt  with  ?  for  dealt  with  it  must  be,  not  only  in  the  interests 
of  justice,  not  only  in  those  of  the  Native  population,  not  only 
in  those  of  the  European  settlers  themselves,  who,  as  I  said  in 
the  statement  of  objects  and  reasons,  suffer  more  severely 
from  it  than  anybody  else,  but  also,  I  could  almost  say,  in 
the  interests  of  the  criminals  themselves.  For  we  all  know 
our  countrymen  well  enough  to  be  aware  that,  after  bear- 
ing for  a  long  time  with  the  annoyance  caused  by  unpunished 
crime,  out  of  respect  to  some  venerable  institution,  or  vene- 
rable quirk,  they  suddenly  turn  round  and  call,  almost  fero- 
ciously, for  punishment.  How,  then,  is  this  mass  of  crime — 
relatively,  if  not  absolutely,  great,  and  committed  over  much 
of  India  with  the  most  perfect  impunity — to  be  disposed  of? 
For  myself,  while  I  think  that  the  Government  of  India  will 
not  have  done  its  duty  until  every  European  criminal  is  brought 
to  justice  as  certainly  as  if  he  were  a  Native,  I  am  opposed  (to 
use  a  phrase  which  I  dislike,  and  which  I  think  reflects  no 
credit  on  those  who  invented  it)  to  a  Black  Act.  I  think  that, 
for  so  long  a  time  as  we  can  look  forward  to,  European  British 
subjects  will  have  to  be  tried  for  all  serious  crimes  by  special 
tribunals — ^that  is,  by  a  judge  applying  those  strict  criteria  of 
truth  which  constitute  the  English  law  of  evidence,  and  a  jury 
— a  real  jury — a  petty  jury.  To  put  that  on  its  lowest  ground, 
it  seems  to  me  that  trial  by  jury — that  is,  trial  by  the  petty 
jury — has  affected  English  character  more  than  any  national 
institution — even  more,  I  am  inclined  to  say,  than  representa- 
tive institutions.  While^Jhen,  we  preserve  and  protect  so  many 
Native  customs  that  we  cannot  even  justify,  I  regard  it  as  only 
reasonable  to  respect  the  greatest  and  most  influential  of  Eng- 


ABOLITION    OF    GRAND   JURIES  191 

Ksh  usages.  The  exemption,  therefore,  of  British  subjects 
from  the  ordinary  criminal  tribunals  seems  to  me  to  stand  on 
precisely  the  same  ground  as  the  exemption  of  Hindus  and 
Muhammadans  from  the  new  civil  code  which  is  about  to  be 
introduced.  But  of  course  I  have  more  positive  grounds  for 
my  opinion.  I  consider  that  these  special  courts,  scattered  or 
moving  about  the  country,  will  be  of  the  utmost  importance 
as  examples  and  patterns.  They  will  exhibit  the  English  law 
where  it  is  strongest,  and  serve  to  correct  the  Mufassal  courts 
where  they  arc  said  to  be  weakest,  namely,  in  the  sifting  of 
evidence  and  the  ascertaining  of  facts.  But  if  Europeans  are 
to  enjoy  this  privilege  (I  don't  use  the  word  in  an  invidious 
sense),  they  must  expect  to  enjoy  it  in  a  reasonable  way  ;  and 
I  think  that  the  first  and  best  evidence  of  reasonableness  will 
consist  in  their  consenting  to  give  up  the  grand  jury.  For  my 
own  part,  believing  as  I  do  that  the  greatest  contribution  of 
English  lawyers  to  the  art  of  practical  justice — perhaps  their 
only  very  great  contribution — is  the  discovery  of  the  process 
of  ascertaining  facts  by  judge  and  jury  through  the  agency  of 
the  rules  of  evidence,  and  believing  that  the  spectacle  of  the 
process  in  operation  will  be  of  the  utmost  value  in  India,  it  is 
matter  of  every-day  regret  to  me  that  its  impressiveness  and 
authority  should  be  spoiled  by  this  absurd  appendage  of  an  in- 
stitution which,  in  all  but  the  integrity  of  those  who  take  part 
in  it,  exhibits  the  worst  characteristics  of  Oriental  procedure-^  I 
which  is  secret  and  one-sided,  and  unscientific  and  irrespon-) 
sible,  and  which,  besides,  sucks  all  the  life-blood  out  of  the  in-^ 
valuable  institution  on  which  it  hangs. 

I  have  only  one  thing  more  to  say.  I  have  no  right  to 
assume  that  any  part  of  the  feeling  against  this  Bill  has  been 
caused  by  the  belief  that  I  wished  for  a  simple  fusion  of  the 
grand  and  petty  jury  lists.  The  formation  of  those  lists  is  a 
matter  which  I  thought  it  would  be  more  respectful  to  leave 
to  the  High  Courts,  as  they  now  possess  it  by  Act  of  Parlia- 
ment. But  I  wish  to  say  that,  in  my  opinion,  there  should  be 
no  such  fusion  ;  and  I  have  no  objection  expressly  to  introduce 
into  the  Bill  a  power  to  that  effect.  I  believe  it  is  practically 
found  that  men  deliberate  better  together  when  they  belong 
to  the  same  average  station  in  life.    I  would  therefore  follow 


192  SPEECHES   OF   SIR   HENRY   MAINE 

the  practice  adopted  with  respect  to  civil  juries  at  home,  and 
have  both  a  special  and  a  common  jury  list  for  criminal  cases. 
The  special  list  would  contain  the  majority  of  the  present 
grand  jurors,  and  juries  would  be  taken  from  it  in  all  cases  of 
great  importance,  or  which  the  High  Court  should  deem  to  be 
of  peculiar  difficulty.^  The  grand  jurors  will  then  do  little  more 
work  than  they  do  at  present,  and  do  it  much  more  effectually. 
And  if  it  should  enter  into  your  Excellency's  head,  or  rather 
that  of  my  honourable  friend  the  Lieutenant  Governor —  for  I 
believe  that  it  is  he  who  here  represents  an  aggressive  despot- 
ism— to  put  on  his  trial  an  innocent  man  who  is  a  public  or 
private  adversary,  I  venture  to  think  that,  if  the  trial  is  held 
by  a  judge  of  the  High  Court  and  a  jury  from  this  list,  my 
honourable  friend  will  be  extremely  disappointed. 

THE    LAW    OF    SUCCESSION 

November  25,  1864  ;    March  3,  1865. 

In  December,  1861,  Her  Majesty  appointed  a  commission  composed 
of  Sir  John  Romilly  (the  then  Master  of  the  Rolls),  Chief  Justice 
Erie,  Sir  E.  Ryan,  Mr.  Lowe  (late  Lord  Sherbrooke),  Mr.  Justice  Willes, 
and  Mr.  J.  M.  Macleod,  one  of  Macaulay's  fellow-workers,  to  frame  for 
India  'a  body  of  substantive  law,  in  preparing  which  the  law  of  England 
should  be  used  as  a  basis.'  The  first  of  the  drafts  framed  by  the 
commission  was  a  Bill  to  define  and  amend  the  law  of  intestate 
and  testamentary  succession  in  British  India,  which  became  law  as 
Act  X.  of  1865.  But  it  departed  widely  and  happily  from  the  law 
of  England  by  abolishing  the  distinction  between  the  devolution  of 
movable  and  that  of  immovable  property,  and  by  declaring  that  no 
person  should  acquire  by  marriage  any  interest  in  the  property  of  the 
person  whom  he  or  she  marries.  Mr.  Maine  introduced  the  Bill, 
and  moved  that  it  be  referred  to  a  select  committee. 

He  said  that  though  it  was  difficult  to  overrate  the 
nnportance  of  the  measure,  he  proposed  to  introduce  it  with 
very  few  observations.  Probably  the  Council  would  think  it 
due  to  the  eminent  names  appended  to  the  report  to  refer  the 
Bill  at  once  to  the  committee.  Moreover,  he  thought  that  he 
could  not  usefully  add  anything  to  the  analysis  of  their  work 

•  This  is  now  the  law  under  the  Criminal    Procedure  Code,  Act  X.  of  1882, 
sees.  276,  312-315. 


LAW   OF   SUCCESSION  I93 

which  the  Commissioners  themselves  had  furnished,  and  in 
his  statement  of  objects  and  reasons  he  had  said  everything 
which  he  had  to  state  as  to  the  probable  effect  of  this  code 
on  certain  races  and  classes.  He  only  wished  to  suggest  for 
the  consideration  of  the  Council  the  course  which  it  seemed 
to  him  most  expedient  to  follow.  The  Council  might  have 
observed  that  in  his  statement  of  objects  and  reasons  he  had 
expressed  himself  doubtfully  as  to  the  applicability  of  the  code 
to  certain  wild  tribes  who  did  not  fall  within  the  exception  of 
Hindus  and  Muhammadans — such,  for  example,  as  the  Bhi'ls, 
the  Khonds,  and  the  Kols,  whose  gradual  civilisation  had 
lately  been  attracting  notice  both  at  home  and  in  India,  the 
Buddhist  tribes  spread  along  the  crest  of  the  Himalaya,  such 
as  the  Tibetans  in  the  valley  of  Spi'ti  and  the  Lepchas  about 
Darjiling.  He  believed  it  was  found  that  in  proportion  to 
the  barbarism  of  a  tribe  was  the  faintness  of  the  notion  of 
individual  right  as  distinguished  from  family  right.  Thus, 
while  the  rights  of  one  household  against  another  might  be 
clearly  ascertained,  the  rights  of  the  members  of  each  house- 
hold inter  sc  would  probably  be  faintly  and  vaguely  defined. 
When,  then,  all  that  you  knew  of  a  particular  race  was  that 
it  was  barbarous,  the  presumption  was,  as  he  had  said  in  the 
statement  of  objects  and  reasons,  that  a  system  of  conjoint 
family-enjoyment  during  life  was  combined  with  a  system  of 
conjoint  family-succession  after  death.  It  was  accordingly 
difficult  to  sa}'  what  might  be  the  effect  produced  by  a  law 
of  succession  like  that  of  the  code  on  a  set  of  barbarous 
customs.  A  violent  disturbance  of  them  might  be  effected 
by  the  ver}'  sharpness  and  precision  with  which  the  rights 
were  declared.  Being  aware  of  this  danger,  the  Government 
requested  the  officers  in  charge  of  these  tribes  carefully  to 
consider  the  effect  which  the  first  chapter  of  the  code  would 
have  on  their  customary  law.  Little  information  of  the  kind 
had,  however,  come  in,  and  that  was  not  surprising.  For  it 
was  b)'  no  means  easy  to  ascertain  the  detail  of  a  body  of 
barbarian  custom  ;  when  ascertained  it  was  harder  still  to 
state  it  in  intelligible  language  ;  and  more  difficult  still  to 
define  what  would  be  the  effect  upon  it  of  a  civili.scd  body  of 
law.     Mr.  Maine  was  afraid  that  if  they  waited  for  all    the 

O 


194  SPEECHES   OF   SIR    HENRY   MAINE 

information  thc}-  required,  the  enactment  of  that  part  of  the 
code  would  be  inordinately  delayed.  He  therefore  proposed 
that  if  the  Council  was  satisfied  of  the  wholesome  operation 
of  the  new  law  upon  the  more  civilised  races  to  whom,, 
as  it  stood,  it  applied,  it  should  be  enacted  with  a  section 
empowering  the  Governor  General  in  Council  to  exempt 
from  its  operation  any  race,  sect,  or  tribe  ;  and  moreover,  to- 
exempt  them  retrospectively  from  the  moment  of  the  passing- 
of  the  Bill,  so  that  there  might  be  no  inconvenient  interrup- 
tion in  the  devolution  of  rights.'  He  trusted  that  under 
this  power  it  would  not  be  necessary  to  exempt  a  race  so 
numerous  as  the  Burmese.  Turning  to  the  more  civilised 
races,  the  first  place  among  them  was  of  course  taken  by  the 
Europeans.  He  was  happy  to  say  that  all  the  information 
he  had  received  led  him  to  believe  that  this  part  of  the  code 
would  be  received  by  them  with  favour.  Outside  the  presi- 
dency towns,  it  would  be  heartily  welcomed  ;  and,  indeed,  no 
one  could  contemplate  the  utter  doubtfuhiess  and  uncertaint}- 
of  the  European  law  of  property  in  the  Mufassal  without 
feeling  that  a  much  worse  set  of  provisions  than  this  would 
be  the  greatest  of  boons. 

He  would  advert  to  one  or  two  criticisms — he  could 
hardly  call  them  objections — which  had  reached  him  as  to 
this  chapter  of  the  code  considered  as  a  modification  of 
English  law.  He  had  received  a  printed  paper  which  had 
possibly  been  sent  to  other  members  of  Council.  The  writer 
professed  to  be  a  Scotchman,  and  to  speak  the  feeHngs  of  a 
number  of  Scotch  gentlemen  who  were  settled  in  India.  He 
was  warmly  in  favour  of  this  part  of  the  code,  and  wished 
that  it  should  become  law  with  the  least  possible  delay,  but 
expressed  a  fear  that  it  might  compromise  a  principle  which 
he  and  his  countr)'mcn  prized  on  moral  and  socialgrounds  ;  the 
principle  of  \egitimsit\on  />er  su/jstyj/a^ns  juatriuiouiuni — that  is, 
the  principle  by  which  under  Scottish  law  natural  children 
were  legitimated  by  the  after-marriage  of  their  parents- 
The  objection,  Mr.  Maine  thought,  was  founded  on  a  mis- 
conception. It  was  true  that  the  code  declared  that  none 
but    legitimate  children  should  succeed  ;  but  it    nowhere  as 

'  See,  accordingly,  Act  X.  of  1S65,  sec.  332. 


LAW   OF    SUCCESSION  I95 

}-ct  defined  legitimacy.  Whatever,  therefore,  were  at  the  pre- 
sent moment  the  law  of  India  determining  the  legitimacy  of 
a  Scotchman's  children,  a  question  upon  which  Mr.  Maine 
would  be  sorry  to  offer  a  \er}'  positive  opinion,  it  would 
be  wholly  unaffected  by  the  enactment  of  this  part  of  the 
code.  Doubtless  the  question — and  it  was  a  most  difficult 
one — would  have  to  be  decided  hereafter  whenever  the 
chapter  on  the  law  of  persons  came  before  them  for  consi- 
deration. But  it  was  probable  that  that  chapter  would  be 
the  last  taken  up  by  the  English  Law  Commissioners. 

Another  remark  had  been  addressed  to  Mr.  Maine  on 
Section  4,  which  declared  that  '  no  person  shall  by  marriage 
acquire  any  interest  in  the  property  of  the  person  whom  he 
or  she  marries,  nor  become  incapable  of  doing  any  act  in 
respect  of  his  or  her  own  propert)-,  which  he  or  she  could 
have  done  if  unmarried.'  A  doubt  had  been  hinted  whether, 
on  moral  grounds,  the  complete  proprietary  independence 
of  husband  and  wife  was  justifiable.  But  in  this  section 
marriage  meant  the  mere  fact  of  marriage,  and  the  provisions 
of  any  will  or  marriage  settlement  were  unaffected  by  it.  It 
was  true  that  in  England,  under  the  common  law,  the  fact  of 
marriage  conferred  on  a  husband  certain  rights  over  his  wife's 
realty,  and  the  whole  of  her  personalty,  past  and  present. 
But  the  operation  of  the  rule  was  much  controlled  by  certain 
doctrines  of  the  Court  of  Chancery,  compelling  a  husband  to 
settle  property  devolving  on  his  wife,  when  it  happened  to  be 
onl}^  recoverable  through  the  agency  of  the  Court  ;  and,  as 
regards  the  property-holding  classes,  the  practical  effect  of 
marriage  settlements  and  wills  was  to  render  the  rule  of  very 
limited  application.  Mr.  Maine  imagined  that  an  English 
father  would  consider  it  a  great  calamity  that  his  daughter 
should  marry  without  a  settlement.  Either,  therefore,  that 
settlement  or  some  will  controlled  the  enjoyment  of  the 
property,  and  it  was  only  through  accident  that  the  naked 
rule  of  law  was  allowed  to  operate. 

Similar  considerations  carried  with  them  the  answer  to 
another  criticism  which  had  reached  him.  This  law  of  succes- 
sion practically  turned  realty  into  personalty,  and  provided 
that  the  same  rules  of  succession  should  govern  both.      He 


196  SPEECHES   OF   SIR    HENRY   MAINE 

had  been  asked  whether  the  extreme  subdivision  of  land 
which  a  similar  law  of  succession  was  supposed  to  draw  with 
it  in  France,  was,  on  economical  grounds,  desirable,  either 
for  India  or  for  any  other  country.  Here  also  was  apparently 
a  misconception  arising  from  not  taking  into  account  marriage 
settlements  and  wills.  The  reason  why  the  inorcelkinent,  as 
it  was  called,  of  land  in  France  had  gone  so  far  was,  not 
because  the  French  law  of  intestate  succession  divided 
the  land  equally  among  all  the  children,  but  because  the 
French  code  contained  a  number  of  most  stringent  prohi- 
bitions against  private  interference  with  that  law.  It  might 
be  said  that  the  French  code  compelled  a  man  to  die  in- 
testate, since,  if  he  left  children,  any  will  which  he  might 
make  could  have  only  the  most  limited  operation.  It  was, 
indeed,  notorious  that  if  those  restrictions  had  not  existed, 
a  very  large  part  of  the  soil  of  France,  on  the  return  of  the 
French  nobility  in  1814  and  181 5,  would  have  been  tied  up  in 
entails  nearly  as  strict  as  those  which  existed  previous  to  the 
Revolution,  even  though  the  law  of  succession  to  an  intestate 
was  precisely  the  same  as  that  of  the  proposed  Indian  code. 
It  was  further  a  fact  that  in  some  European  countries,  into 
which  the  French  code  had  been  introduced  but  in  which 
these  prohibitions  had  been  relaxed  in  favour  of  certain 
classes,  the  existing  settlements  and  entails  were  even  more 
stringent  than  those  usually  found  in  England,  there  often 
not  being  even  a  power  of  portioning  daughters.  The  truth 
was  that,  when  you  were  dealing  with  educated  and  propert\-- 
holding  societies,  the  question  of  the  legal  consequences 
which  were  to  follow  from  the  mere  facts  of  marriage  and  of 
death  had  chiefly  a  technical  importance  ;  and  he  had  no 
doubt  that  technical  considerations  had  mainly  influenced 
the  Commissioners  in  framing  these  provisions.  It  was  quite 
certain  that,  when  you  had  once  enacted  that  marriage  should 
\\o\.  per  se  confer  any  rights  on  husband  or  wife,  and  that  the 
law  of  succession  to  land  should  be  the  same  as  the  law  of 
succession  to  personalty,  you  at  one  stroke  introduced  an 
amount  of  simplicity  into  English  law  which  was  almost 
incredible. 

The     onl)'    serious    difficult}-    \\hich    would    have    to    be 


LAW   OF   SUCCESSION  1 97 

encountered  in  committee  arose  through  the  proposed  appH- 
cation  of  the  code  to  the  Parsi's.  The  Council  might  be 
aware  that  the  Parsi's  had  under  distinguished  legal  advice 
prepared  a  partial  code  of  civil  law,  including  chapters  on 
marriage,  divorce,  and  succession.'  Mr.  Maine,  in  his  state- 
ment of  objects  and  reasons,  had  proposed  that  the  Pdrsi 
code  should  be  considered  pari  passu  with  the  draft  of  the 
English  Law  Commissioners,  who  were  themselves  of  opinion 
that  the  law  which  they  had  framed  should  suffice  for  the 
Parsi's.  But  the  heads  of  the  Parsi  community  objected  to 
that  course,  on  the  ground  that  no  one  could  say  how  long 
it  would  be  before  the  Indian  civil  code  became  the  law  of 
India.  Mr.  Maine  fully  admitted  the  force  of  that  objection 
as  regarded  the  chapters  on  marriage  and  divorce.  He  was 
therefore  quite  willing  that  the  chapters  of  the  Parsi  code  on 
those  subjects  should  become  law  whenever  his  honourable 
friend,  Mr.  Anderson,  introduced  them.  But  he,  Mr.  Maine, 
still  proposed  to  consider  the  Commissioners'  draft  of  the 
succession  law  together  with  that  of  the  Parsi's.  He,  in  fact, 
hoped  that  the  first  chapter  of  the  Indian  civil  code  would  be 
passed  before  the  Council  separated  in  the  spring,  and  there- 
fore the  objection  of  the  Parsi's  as  to  time  would  be  met.  If 
the  Parsi's  turned  out  to  have  an  invincible  repugnance  to 
certain  provisions  of  the  code,  special  legislation  on  their 
behalf  might  be  carried  through  before  the  sittings  were 
ended.  Mr.  Maine  was  not  unaware  of  the  nature  of  certain 
specific  objections  of  the  Parsi  community  to  particular  rules 
laid  down  by  the  Law  Commissioners,  and  as  to  some  of  them, 
he  had  a  pretty  strong  opinion  of  his  own.  He  hoped,  how- 
ever, that  he  was  not  so  pedantic  as  to  press  an  abstract 
opinion  against  an  ancient  and  venerated  usage  when  no 
great  practical  evil  resulted  from  it. 

Mr.  Maine  then  proceeded  as  follows  : — One  thing  more 
I  have  to  say.  I  venture  to  predict  that  when  the  first 
chapter  of  the  civil  code  has  been  examined  and  discussed  by 
the  Council  and  its  committee,  the  strongest  impression  left 
on  their  mind  will  be  respect  for  the  Commissioners  who  pre- 
pared it.     I  know,  of  course,  that  they  had   the  assistance  of 

'  These  chapters  were  enacted  as  Act  XV.  of  1865,  and  Act  XXI.  of  1865. 


198  SPEECHES   OF    SIR   HENRY    MAINE 

able  subordinates.     But  still,  after  making  every  allowance 
for  that  advantage,  it  remains  wonderful  that  these  Commis- 
sioners, overtasked  judges,  hardworked  practising   barristers, 
gentlemen    immersed    in    politics  or  in   the  duties   of  office, 
should  have  found  time  to  superintend  and  control  the  pre- 
paration of  a  body  of  law,  in  which  not  only  has  each  separate 
proposition  been  carefully  considered  and   measured   both   as 
to  form   and   substance,  but  the  bearing  of  each   and  every 
proposition    on   the   residue  has  been   forecasted  and  ascer- 
tained.    Perhaps,  however,  now  that  I  perceive  what  the  true 
objects  of  the  Commissioners  have  been,  my  surprise   is   less 
than  that  of  others  ;  for  I  have  seen  enough  personally  of  the 
real  luminaries   of   English   law  to  know  the   falsity  of  the 
ignorant  delusion  that  there  is  something  in  great  technical 
knowledge  and  great  practical  aptitude  which  implies  a  con- 
tempt for  theoretical   perfection.     My  own  experience — it  is 
necessarily  limited,  but   still  I  state  a   fact — is   that,  in   pro- 
portion to  the  judicial  or  professional  eminence  of  an  English 
lawyer  is  his  sensitiveness  to  the  undoubted  faults  of  English 
law,  and  his  anxious  desire  that,  to    that    strong  and   solid 
structure  of  common  sense  which  constitutes  its  mass,  there 
should  be  added  excellences  to  which  it  certainly  cannot  at 
present  lay  claim — simplicity,  symmetry,   intelligibilit}^,  and 
logical    coherence.      Knowing    this,    I    scarcely  marvel    that 
these  gentlemen  should  ha\'e  devoted  much  of  a  leisure  which 
they  can  ill  spare  to  the  preparation  of  a  code  \\'hich,  to  judge 
from  this  first  instalment,  wdiile  it  preserves  all   that  is  best 
worth  keeping  and  of  most   general  application   in   English 
law,  combines  it  with  a  simplicity  of  form  and  an  intelligibility 
of  statement  which  a  French  codifier  might  envy.     And  their 
reward,  and  that  of  all  who  have  taken   part   in  these  Indian 
codes  will  be — I  may  say  that  without  presumption,  as  I  have 
no  share  in  the  earlier  codes,  and  expect  to   have  little  more 
than  a  mechanical  part  in  this — that  their  labours   are  pro- 
bably  destined    to    exercise    hardly  less    influence    over   the 
countless  communities  obeying  English  law  than  the  French 
codes  have  exercised,  and  still  exercise,  over  the  greater  part 
of  the  continent  of  Europe. 


LAW   OF    SUCCESSION  I99 

On  March  3,  1865,  Mr.  Maine  moved  that  the  report  of  the 
select  committee  be  taken  into  consideration,  and,  after  describing 
certain  changes  made  in  the  Bill,  proceeded  as  follows  : 

Sir,  though  wc  thus  propose  to  contract  greatly  the 
primary  sphere  of  the  operation  of  this  new  law,  I  do  not  feel 
inclined  to  modif\'  the  language  which  I  employed  when  I 
introduced  the  Bill  to  the  Council,  as  to  its  great  importance 
to  India.  To  the  European  community  it  will  prove,  I 
believe,  an  unmixed  advantage,  and  will  even  deliver  them 
from  dangers  which  perhaps  they  do  not  quite  appreciate,  but 
which  I  regard  as  imminent  and  serious.  But  I  must  describe 
it  as  scarcely  less  of  a  boon  to  the  rest  of  the  people  of  India. 
Sir,  insensibly  and  gradually,  large  sections  of  the  Hindu  and 
other  communities  have  acquired  the  power  of  testamentary 
disposition,  which  probably,  and  indeed  ccrtainl}%  was  not 
enjoyed  by  them  under  their  ancient  usages.  Now,  there  is 
no  stronger  stimulant  to  ci\-ilisation  than  the  liberty  of  testa- 
tion ;  but  I  am  afraid  that  there  is  a  heavy  set-off  against  its 
advantage  in  India  through  the  encouragement  afforded  to 
fraud.  Your  Excellency  in  Council,  if  this  Bill  becomes  law, 
w'ill  probably  think  fit  to  inquire  of  those  who  are  most  com- 
petent to  speak  with  authority,  whether  the  provisions  of  this 
code  relating  to  testamentary  disposition  might  not  safely  be 
extended  to  all  the  races  of  India  who  have  the  power  of 
making  wills.'  I  must  further  bring  to  the  notice  of  the 
Council  that  this  Bill  contains  a  part  of  a  vast  mass  of  law, 
which  is  accepted  as  law  by  all  the  civilised  races  of  the  West, 
independently  of  express  enactment.  The  rules  I  refer  to  are 
deemed  to  embody  first  principles,  or  direct  deductions  from 
first  principles.  Whatever  be  their  true  origin  —  and  the 
better  opinion  is  that  most  of  them  descend  from  the  Roman 
civil  law — they  have  long  commended  themselves  to  the 
common  sense  of  all  European  communities.  Even  in  Eng- 
land, this  body  of  rules  has  never  been  put  into  so  intelligible 

'  The  Hindu  Wills  Act  (XXI.  of  Muhammadans,  and  it  extends  only  to 
1870)  applies  to  the  wills  of  Hindus,  the  Lower  Provinces  of  I5engal  and 
Jainas,  Sikhs,  and  Buddhists  the  the  towns  of  Madras  and  IJonibay.  The 
rules  of  the  Indian  Succession  Act  Probate  and  Administration  Act,  V.  t)f 
relating  to  execution,  attestation,  re-  18S1,  applies  to  all  Natives  most  of  the 
vocation,  revival,  interpretation,  and  rules  as  to  probate  and  letters  of  admin- 
probate.     Put    it    does   not   apply   to  islration. 


200  SPEECHES   OF   SIR   HENRY   MAINE 

and  accessible  a  shape  as  it  is  placed  by  this  law.  English 
practitioners  have  to  gather  it  painfully  from  dispersed 
treatises  and  detached  law-reports.  Even  if  this  part  of  our 
code  were  nothing  more  than  a  repertory  of  these  rules,  it 
would  be  difficult  to  overrate  its  value,  for  the  want  of  such  a 
repertory  is  greatly  felt  in  our  Mufassal  courts,  and  I  have  no 
doubt  that  the  definite  rules  contained  in  it  will  rapidly  fill 
the  void  which  is  now  somewhat  vaguely  occupied  by  infer- 
ences from  the  not  very  certain  canon  of  '  equity  and  good 
conscience.' '  But  beyond  all  doubt,  the  great  influence  of  this 
code  will  be  its  influence  as  a  model  and  a  type.  Judging  by 
experience,  there  are  no  limits  to  the  influence  which  a  clear 
and  simple  body  of  written  law  exercises  in  absorbing  less 
advanced  systems  of  jurisprudence.  The  great  example  of 
this  is  of  course  the  French  codes,  which,  violently  detested 
and  vehemently  decried  after  the  collapse  of  the  French 
Empire  in  1815,  give  now  in  1865  the  law  to  all  but  a  frag- 
ment of  continental  Europe.  Through  the  effects  of  this 
power  of  absorption,  I  have  no  doubt  that,  if  our  Bill  become 
law,  it  will  ultimately  deserve  the  title  which  at  present  we 
hesitate  to  give  it — that,  namely,  of  '  The  Indian  Civil  Code.' 

Next  to  the  abolition  of  the  distinction  between  the  devolution' 
of  movable  and  that  of  immovable  property,  the  most  important 
changes  in  the  law  proposed  by  the  Bill  were  contained  in  the 
following  sections  : 

43.  '  No  person  shall,  by  marriage,  acquire  any  interest  in 
the  property  of  the  person  whom  he  or  she  marries,  nor 
become  incapable  of  doing  any  act  in  respect  of  his  or  her 
own  property,  which  he  or  she  could  have  done  if  unmarried.' 

44.  '  If  a  person  whose  domicile  is  not  in  British  India 
marries  in  British  India  a  person  whose  domicile  is  in  British 
India,  neither  party  acquires  by  the  marriage  any  rights  in 
respect  of  any  property  of  the  other  party  not  comprised  in  a 
settlement  made  previous  to  the  marriage,  which  he  or  she 
would  not  acquire  thereby  if  both  were  domiciled  in  British 
India  at  the  time  of  the  marriage.' 

'  '  Practically  speaking,'  once  said  feet  understanding  of  irriperfect  collec- 
Sir  James  Stephen,  '  these  attractive  tions  of  not  very  recent  editions  of 
words  mean  little  more  than  an  imper-        English  text-books.' 


LAW   OF   SUCCESSION  201 

Mr.  (now  Sir  William)  Muir  having  moved,  in  a  long  and  able 
speech,  that  these  sections  be  omitted,  Mr.  Maine  spoke  as  follows  : 

The  first  observation  which  my  honotirablc  friend's  speech 
calls  for  is  a  reply  to  his  remark  that  this  section  has 
not  been  discussed  by  the  Indian  press.  It  so  happens  that 
it  is  the  only  section  which  has  been  discussed.  We  some- 
times suffer  from  the  want  of  discussion  on  the  part  of  the 
press  ;  but  the  observations  on  this  provision  which  I  made 
when  I  introduced  the  Bill  were  really  elicited  by  comments 
on  it  in  an  Indian  newspaper  for  whose  readers  I  intended 
the  explanations  which  I  then  offered,  and  which  I  am  about 
to  repeat. 

I  submit  to  my  honourable  friend  that  it  will  be  impos- 
sible to  carry  his  amendment  without  going  further.  I  do 
not  wish  to  obstruct  any  course  he  may  think  fit  to  take.  But 
I  must  say  that  if  these  sections  are  simply  omitted,  the  result 
will  be  almost  inextricable  confusion.  As  he  himself  appears 
to  anticipate,  the  English  law  of  marriage  in  its  application  to 
property  will  survive,  since  we  have  practically  confined  the 
operation  of  the  code  to  the  European  community.  Now,  as 
I  before  explained,  one  of  the  principal  objects  of  the  new  law 
is  to  efface  the  distinction  between  real  and  personal  pro- 
perty, to  substitute  that  between  movables  and  immovables, 
and  to  provide  simple  rules  of  testamentary  disposition  and 
of  intestate  succession  uniform  for  property  of  either  kind. 
But  the  English  law  of  property  as  affected  by  marriage,  has 
essentially  for  its  basis  the  distinction  between  realty  and 
personalty.  It  has  been  correctly  described  by  my  honour- 
able friend.  It  gives  the  husband  all  his  wife's  personalty,  it 
confers  on  him  certain  limited  rights  over  her  realty,  over 
debts  due  to  her  and  over  what  are  called  her  chattels  real. 
On  the  other  hand,  the  wife  acquires  a  right  to  dower  out  of 
her  husband's  lands.  I  speak  of  course  of  the  law  of  marriage 
as  unaffected  by  marriage  settlement,  or  by  the  provisions  of 
any  will  of  the  person  from  whom  the  property  has  devo  ved. 
What,  then,  will  be  the  effect  .''  Wills  and  marriage  settle- 
ments are  in  pari  materia.  Succession  after  death  is  just  as 
often  determined  by  one  as  by  the  other.  Every  will,  there- 
fore, made  under  this  code  will  be  governed  by  one  set  of  prin- 


202  SPEECHES   OF   SIR   HENRY   MAINE 

ciples  ;  every  marriage  settlement  will  be  made  under  another. 
There  will  be  entanglement  between  the  two,  and  so  far  from 
having  increased  the  simplicity  of  the  law,  we  shall  have 
added  greatly  to  its  complexit}-.  If  the  amendment  is  carried, 
the  first  form  of  the  last  section  must  be  restored,  and  the 
code  will  only  come  into  operation  after  the  chapter  on  the 
law  of  Persons  shall  have  been  passed.  But  as  the  Commis- 
sioners will  almost  certainly  take  that  up  last  in  order,  the 
code,  when  it  is  enacted,  will  have  ceased  to  have  practical 
interest  for  anybod)'  now  in  India. 

I  have  no  doubt,  however,  that  my  honourable  friend  has 
proposed  his  amendments  with  a  view  of  raising  the  c^uestion 
of  principle  which  he  has  very  ably  argued.  He  has  stated, 
though  with  more  moderation,  the  views  expressed  by  Mr. 
Justice  Seton-Karr  in  a  minute  on  this  section,  which  he  has 
forwarded  to  the  Council.  To  put  these  objections  in  a  clear 
light,  I  will  cite  a  part  of  Mr.  Seton-Karr's  animadversions  : 

'  It  involves  a  fundamental  change  in  the  conditions  of  married 
existence,  which  seems  to  me  wholly  uncalled  for  ;  likely  to  create 
feuds  or  to  increase  them  ;  at  variance  with  a  principle  well  known, 
popularly  accepted,  and  long  established  in  England  ;  subversive  of 
the  harmony  and  well-being  of  the  closest  social  intercourse  ;  opposed 
to  the  wholesome  relation  in  which  the  woman  stands  to  the  man  ; 
destructive  of  mutual  dependence  and  honour,  and  a  mere  concession 
to  the  levelling  spirit  of  the  present  age,  presented  under  the  guise  of 
a  questionable  liberality.' 

Sir,  I  trust  I  shall  not  occupy  much  of  the  Council's  time 
in  .showing  that  the  Indian  Law  Commissioners  are  not  open 
to  these  grave  charges.  Whether  I  shall  present  the  justifi- 
cation which  the  Commissioners  themselves  would  give  I 
really  cannot  say.  For  I  suppose  that  the  last  criticism  on 
their  code  they  would  expect  would  be  this.  How  little  these 
gentlemen,  who  are  not  more  learned  than  respectable,  can  be 
prepared  for  the  charge  that  they  are  intending  disturbers  of 
domestic  peace,  may  be  inferred  from  the  fact  to  which  my 
honourable  friend  has  adverted,  but  without  bringing  out  its 
full  significance,  that  this  section  simply  embodies  the  pro- 
visions which  are  inserted  as  a  matter  of  course  into  every 
well-drawn  English  settlement  when  the  property  of  the  lady 
is    brought    under    it.      I   venture  to    say  that    every  lawyer 


LAW   OF   SUCCESSION  203 

practised  in  conveyancing — our  friend  the  Secretary  to  the 
Council  for  example— would  insert  it  without  a  second  thought 
if  he  had  no  express  instructions  to  the  contrary,  or  rather  he 
would  prescribe  a  more  stringent  rule,  as  my  honourable 
friend  seems  himself  to  be  aware,  though  I  do  not  comprehend 
the  argumentative  use  to  which  he  has  put  his  knowledge  of 
the  fact.  There  is  a  certain  magical  formula  of  English  law 
— '  to  her  sole  and  separate  use  ' — which,  wherever  it  is  found, 
has  the  exact  effect  of  this  section.  But  it  is  usual  to  take  a 
further  step  to  which,  as  it  seems,  my  honourable  friend  must 
object,  a  fortiori,  and  to  deprive  the  wife  of  the  power  of 
anticipation,  so  that  not  only  has  she  the  control  of  her  pro- 
perty, but  is  unable  to  divest  herself  of  it  in  favour  of  her 
husband  or  of  anybody  else.  The  Law  Commissioners  there- 
fore appear  to  me  to  have  followed  what  is  the  soundest  of  all 
rules  in  amending  legislation.  They  find  the  nominal  law 
one  way,  the  actual  practice  another.  They  know  by  expe- 
rience that  the  nominal  law  is  altogether  overridden  by 
inveterate  usage.  Thereupon  they  have  taken  the  usage  and 
made  it  into  the  law.  Sir,  it  seems  to  me  that  the  argument 
of  my  honourable  friend  and  of  these  learned  judges,  Mr. 
Justice  Seton-Karr  and  Mr.  Justice  Campbell,^  lead  inevitably 
to  the  conclusion,  which  surely,  with  all  respect,  I  may  ven- 
ture to  call  absurd,  that  in  every  household  in  England 
afflicted  with  the  calamity  of  a  fortune  devolving  on  a  wife 
from  her  parents,  dissension  and  suspicion  must  reign,  and  a 
generally  immoral  state  of  relations  be  established.  Mr. 
Justice  Campbell  observes  that  he  has  become  alive  to  the 
mischievousness  of  this  section  from  sad  experience  of  the 
evil  effects  of  a  similar  rule  among  the  ladies  in  the  zenanas 
of  the  Shia  Muhammadans  in  Oudh.  I  venture  to  think  that 
the  experience  of  English  gentlewomen  is  more  germane  to 
the  purpose,  and  I  say  that  the  averment  that  to  give  them 
a  share  in  the  control  of  the  property  they  have  inherited 
impairs  their  sense  of  conjugal  duty  is  calumnious.  I  do  not, 
indeed,  mean  to  say  that  it  is  calumnious  in  the  mouth  of  my 
honourable  friend  or  of  these  learned  judges.  I  attribute 
a  feeling,   which  to  me  is  perfectly  unintelligible,  to  a  small 

'  The  late  .'^ir  Geo.  Campbell. 


204  SPEECHES   OF   SIR   HENRY   MAINE 

circumstance  peculiar  to  India,  which  is  not  unimportant. 
Members  of  the  Services  in  India  marry  generally  under  the 
provisions  of  their  funds,  which,  in  fact,  are  ready-made  mar- 
riage settlements.  As,  then,  these  funds  are  formed  by 
retrenchments  from  the  earnings  of  the  husband,  a  marriage 
settlement  in  India  is  most  frequently  a  provision  made 
exclusively  by  the  husband.  But  a  marriage  settlement  in 
England  is  just  as  often  a  settlement  of  the  wife's  fortune  ;  and 
I  say  that  the  general  sense  of  equit}-  and  fairness  prevailing 
among  Englishmen  would  be  severely  shocked  if  there  were 
not  reserved  to  the  wife  a  control  over  her  property,  or,  at  all 
events,  the  free  exercise  of  her  volition  in  giving  it  away. 
And  so  strong  is  this  feeling  that  the  property-holding  classes 
have  given  the  benefit  of  their  own  practice  to  the  poor,  and 
some  recent  enactments  have  been  passed  to  protect  the 
personal  earnings  of  a  wife  against  the  common-law  rights  of 
her  husband. 

Sir,  the  first  reason  which  I  should  expect  the  Commis- 
sioners to  give  in  justification  of  this  section  is  this — that  by  it 
in  an  eminent  degree  they  have  attained  to  simplicity.  It  is 
no  doubt  possible  for  the  lawgiver  to  regulate  by  express 
legislation  the  law  of  property  as  affected  by  the  status  of 
marriage — to  select  some  system  of  proprietary  relations 
between  husband  and  wife  as  in  itself  the  best  and  most 
expedient — and  yet  to  construct  a  tolerably  simple  body  of 
jurisprudence.  But  such  simplicity  can  be  secured  on  one 
condition,  which  is  quite  indispensable.  It  is  this — that  after 
choosing  your  ideally  perfect  set  of  relations,  you  adhere  to 
it,  and  abide  by  it — that  by  express  prohibitions  you  forbid 
any  but  the  most  inconsiderable  departure  from  it.  It  is,  as 
it  seems  to  me,  an  inadequate  appreciation  of  this  truth  which 
deprives  of  value  my  honourable  friend's  citations  from  foreign 
bodies  of  law.  The  French  codes,  which  are  doubtless  the 
most  liberal  of  all,  and  which  are  destined  to  absorb  almost 
all  the  others,  provide,  as  my  honourable  friend  has  correctly 
stated,  three  alternative  forms  of  marriage  settlement,  and 
ordain  that  if  none  in  particular  be  adopted  by  the  persons 
marrying,  one  special  settlement  shall  prevail.  But,  then, 
under  French  law,  no  marriage  settlement  is  allowed  to  affect 


LAW   OF    SUCCESSION  205 

succession  after  death.  E\cry  contract  of  the  kind  is  subject 
to  the  inflexible  rules  which  compel  the  absolutely  equal 
division  of  the  property  among  the  children.  Moreover,  the 
enjoyment  of  the  property  by  the  married  persons  during 
their  joint  li\-es  can  only  be  varied  from  the  provisions  of 
these  three  ready-made  settlements  in  a  very  slight  degree. 
Some  deviation  through  what  arc  called  '  auxiliary  pacts ' 
— 'collateral  articles'  as  we  probably  should  call  them — is 
permitted,  but  such  deviation  is  not  considerable.  Speaking 
roughly,  it  may  be  said  that  two  persons  intending  to  marry 
under  French  law  are  confined  to  a  choice  among  three  forms 
of  marriage  settlement,  and  can  only  affect  their  own  life- 
interests. 

Compared,  then,  with  the  almost  unlimited  liberty  of 
making  settlements  which  is  permitted  by  English  law,  the 
French  system  is  one  of  the  severest  restriction.  I  suppose. 
then,  the  Law  Commissioners  to  have  reasoned  in  this  way : 
'  We  offer  no  opinion  as  to  the  abstract  expediency  of  the 
proprietary  independence  of  husband  and  wife.  We  are 
ready  to  admit  that,  in  particular  cases,  it  may  be  desirable  to 
give  the  husband  a  larger  control  over  his  wife's  fortune. 
But  we  are  unable  to  reconcile  any  legislation  founded  on  this 
admission  with  that  unbounded  liberty  of  moulding  settle- 
ments to  the  position  of  the  persons  and  of  the  property 
which  the  English  law  has  long  permitted,  which  the  English 
people  have  long  practised,  and  which  we  intend  to  confer  on 
the  people  of  India.  Granting  the  unshackled  freedom  of 
making  settlements,  we  think  that  the  proprietary  indepen- 
dence of  man  and  wife  is  the  best  point  to  start  from.  For 
it  is  found  by  the  experience,  the  consentaneous  experience 
of  English  lawyers,  that  if  you  insert  a  series  of  provisions  in 
a  law,  but  permit  them  to  be  overruled  at  the  pleasure  or 
caprice  of  individuals,  you  make  an  absolute  sacrifice  of 
sirnplicit}'.  For  the  immediate  result  is  this^every  line  and 
perhaps  every  ^^•ord  of  every  marriage  settlement  will  have 
to  be  framed  with  an  express  or  tacit  reference  to  the  ante- 
cedent provisions  of  the  code.  The  object  is  to  exclude  those 
antecedent  provisions  and  to  substitute  others.  But  this  can 
only  be  done  by  a  person  who  has  those  provisions  in  his 


206  SPEECHES   OF   SIR    HENRY   MAINE 

mind  and  their  legal  consequences  also.  The  effect  will  there- 
fore be  to  defeat  one  of  the  principal  objects  of  this  legisla- 
tion, which  is  to  dispense  with  the  absolute  necessity  of 
employing  professional  lawyers  in  drawing  wills  and  marriage 
settlements.  Probably  under  no  system  of  law  will  it  ever  be 
quite  safe  to  dispense  with  professional  assistance.  But  if 
this  code  be  not  tampered  with,  it  will  ensure,  as  far  as  is  pos- 
sible, that  the  intentions  of  a  testator  or  settlor  expressed  in 
plain  and  untechnical  language  shall  have  effect'  The  Com- 
missioners, therefore,  secure  by  this  section  the  great  legal 
advantage  of  simplicity.  But  let  me  ask,  on  their  behalf,  do 
they  sacrifice  morality  ?  Really,  sir,  the  feeling  of  my 
honourable  friend,  and  of  the  two  learned  judges,  appears  to 
me  utterly  inexplicable.  They  seem  to  regard  it  as  almost 
sinful  in  the  law-giver  to  decline  to  express  a  preference  for 
one  particular  system  of  proprietary  relations  between  husband 
and  wife,  and  Mr.  Justice  Campbell  claims  the  most  solemn 
sanctions  for  some  arrangement  which  is  not  clearly  explained, 
but  which,  at  all  events,  is  not  that  of  the  code.  But  neither 
my  honourable  friend  nor  Mr.  Campbell  seem  to  have  the 
smallest  objection  to  allowing  their  typical  system  to  be  over- 
ridden by  the  first  comer.  If,  then,  the  system  of  the  Law  Com- 
missioners be  sinful,  I  say  that  the  system  of  my  honourable 
friend  and  Mr.  Campbell  is  sacrilegious.  If  a  particular  state 
of  the  law  of  property  is  sanctified  at  the  altar,  to  allow  it  to 
be  set  aside  is  to  profane  the  altar.  Sir,  the  English  Marriage 
Service  still  contains  the  ancient  formula  by  which  the  Church 
in  the  Dark  Ages  constrained  the  husband  to  promise  that  he 
would  give  his  wife  after  his  death  her  dower  and  thirds,  a 
promise  which  has  given  its  form  to  the  common  law  of  nearly 
all  Europe.  It  usually  happens  that  the  marriage  settlement, 
signed  a  day  or  two  before  the  ceremony,  makes  the  wife 
covenant  to  renounce  her  dower  and  thirds.  Now,  if  the 
meaning  of  the  promise  were  generally  understood,  which  it 
certainly  is  not,  does  my  honourable  friend  think  that  it  adds 
solemnity  to  the  occasion,  or  that  it  might  not  be  omitted 
with  advantage  ?  I  think  that  there  is  something  like  in- 
decency even  in  a  secular  legislature  to  set  up  provisions  which 
will  certainly  be  knocked  down  by  everybody  like  men  of  straw. 


LAW   OF   SUCCESSION  207 

But  if  these  provisions  have  thcsaiictit)-  which  is  now  claimed 
for  them,  there  is  something  worse  than  indecency. 

Another  justification  which  perhaps  the  Commissioners 
would  offer  is  that  the  section,  except  in  very  rare  cases,  will 
only  have  effect  when  it  has  been  deliberately  intended  that 
it  should  have  effect.  I  asserted  once  before  that  there  is  no 
practice  which  diffuses  itself  so  rapidl)'  as  the  practice  of 
making  w'ills  and  marriage  settlements,  and  under  the  simple 
forms  permitted  by  this  code  the  chances  are  that  it  extends 
itself  more  widel)-  in  India  than  in  England.  But  if  b}'  some 
accident — and  it  will  only  occur  through  an  accident— pro- 
perty should  devolve  from  her  relatives  on  a  wife  during  mar- 
riage in  such  a  way  that  this  section  operates  upon  it,  I  cannot 
for  a  moment  admit  that  there  is  the  smallest  objection  to  re- 
quiring the  wife's  consent  before  this  propcrt}^  is  dealt  w'ith  by 
her  husband.  The  learned  judges  do  not  seem  to  me  fully  to 
comprehend  what  my  honourable  friend  has  shown  that  he 
understands,  though  it  does  not  help  his  argument,  that  this 
section  does  not  forbid  the  wife  to  divest  herself  of  that  control 
over  her  property  which  it  secures  to  her.  There  will  be  no- 
thing to  prevent  her  re-settling  it  the  next  moment  to  her 
husband's  advantage.  There  have  been  systems  of  jurispru- 
dence which,  like  the  Roman  law,  made  it  their  deliberate 
policy  to  keep  apart  the  property  of  husband  and  wife.  But 
then  the  Roman  law  went  on  by  its  prohibition  of  donations 
inter  viruvi  ct  uxoreiit  to  forbid  one  married  partner  to  alien- 
ate his  or  her  property  in  favour  of  the  other.'  An  English 
marriage  settlement  wdien  strictly  drawn  has  the  same  effect 
as  regards  gifts  from  the  wife  to  the  husband.  But  this  section 
puts  no  obstacle  in  the  way  of  an  immediate  re-settlement. 
What  conceivable  objection  can  there  be  to  requiring  the  wife's 
consent  to  it  ?  If  that  state  of  relations  follow  which  in  the  great 
majority  of  cases  docs  follow,  it  would  certainly  be  asked,  and 
that  household  must  be  miserably  ordered  in  which  the  in- 
telligent assent  of  the  wife  to  an  advantageous  disposition  of 
the  property  is  not  asked,  and  given  as  a  matter  of  course. 
But  assume  the  contrary — ^assume  that  the  wife  capriciously 
and  maliciousl}',  and  to  the  detriment  of  the  common  interest, 

'   See  the  Code  of  Justinian,  5.   16.  4,  and  the  \'atican  Fragments,  269. 


208  SPEECHES    OF    SIR    HENRY    MAINE 

refuses  her  consent.  Does  my  honourable  friend,  who  has  the 
peace  of  families  at  heart,  suppose  that  he  would  mend  matters  by 
allowing  the  husband  violently  to  take  away  that  which  he  has 
not  earned  or  given  ?  Since  the  beginning  of  the  world,  or  at  all 
events  since  the  War  of  Troy,  no  great  amount  of  good  feeling, 
so  far  as  I  know,  was  ever  created  by  allowing  one  person  to  take 
away  by  force  what  belongs  to  another.  Nothing  can  be  clearer, 
in  short,  than  the  probable  operation  of  the  section.  In  the 
great  majority  of  cases  the  law  will  correspond  with  that  which, 
apart  from  law,  would  exist  in  fact.  In  the  few  exceptional 
instances,  no  good  would  be  done  by  attempting  legislation. 

But,  sir,  for  myself  I  must  admit  in  all  honesty  that,  ac- 
cording to  my  individual  judgment,  it  would  be  better  if  it 
were  even  commoner  than  it  is  to  give  the  wife  a  control  over 
her  own  property,  and  if  that  control  were  more  sustained 
and  continued.  I  wonder  that  my  honourable  friend  has  not 
learned  the  same  lesson  which  I  have  learned  from  our  dis- 
cussions on  this  code.  Why  is  it  that  after  exempting  Hindus 
and  Muhammadans  from  its  operation  we  have  been  led 
successively  to  except  nearly  every  Native  race  in  India?  The 
reason  is  the  same  throughout — the  insurmountable  distaste 
which  all  feel  for  anything  like  an  equality  of  privileges  be- 
tween the  sexes.  Some  will  allow  the  woman  to  have  nothing  : 
they  say  that  she  should  be  supported  by  her  parents  when  she 
is  unmarried  ;  that  her  husband  should  maintain  her  when  she 
is  married  ;  and  that  after  his  death,  since  the  British  Govern- 
ment permits  her  to  live,  she  should  be  at  the  charge  of  her 
children  or  relatives.  Others  go  a  step  further,  and  admit  that 
the  woman  has  a  right  to  a  share  of  the  patrimonial  property. 
But  they  affirm  that  it  is  an  indeterminate  share,  determinable 
by  her  needs  or  by  the  sense  of  equity  prevailing  in  the  family. 
If  I  had  no  data  to  go  upon  other  than  those  which  these  dis- 
cussions supplied,  I  should  be  led  to  the  conclusion  which  I 
have  arrived  at  independently,  that  if  there  exists  any  test  of 
the  degree  in  which  a  society  approximates  to  that  condition 
which  we  call  civilisation,  it  is  the  degree  in  which  it  ap- 
proaches the  admission  of  an  equality  of  right  between  the 
sexes.  In  this  country  I  am  sure  that  by  simply  applying 
that  criterion  you  could  construct  a  scale  of  barbarism  and 


SMALL   CAUSE   COURTS  209 

civilisation  which  would  commend  itself  to  every  man's  per- 
ceptions. My  honourable  friend  Mr.  Anderson  must  forgive 
me  for  saying,  that  perhaps  the  last  struggle  of  barbarism — I 
do  not  use  the  word  offensively,  but  as  a  term  of  degree  — 
occurs  in  the  case  of  his  excellent  clients  the  Parsi's,  who  are 
ahead  of  the  other  races  in  allowing  to  women  a  definite  share 
of  property  and  in  permitting  them  to  enjoy  it  independently, 
but  who  seem  to  consider  it  a  sin  against  nature  if  daughters 
were  to  take  more  than  a  fourth  as  much  as  their  brothers.  I 
once  had  a  conversation  with  a  very  able  Native  member  of 
Council  on  some  project  of  law,  and  I  observed  to  him  that  if 
his  view  were  correct,  there  would  be  no  difference  between 
wifehood  and  slavery.  '  Well,'  said  he,  '  but  that  is  the  very 
doctrine  from  which  we  take  our  start.'  Now,  of  course  the 
views  of  my  honourable  friend  and  the  two  learned  judges  are 
very  remote  from  this — they  are  very  near  the  other  end  of 
the  scale.  But  the  question  is,  whether  they  are  wholly  un- 
allied  with  it  .''  I  have  always  observed  that  prejudice,  when 
driven  to  its  last  stronghold,  generally  clothes  itself  in  language 
of  a  certain  vague  magnificence  ;  and  I  cannot  help  suspect- 
ing that  something  of  the  doctrine  of  my  Native  friend  lurks 
in  the  generalities  of  my  honourable  friend  and  the  learned 
judges  about  the  ideal  type  of  the  family. 

Sir,  I  think  we  may  claim,  not  for  English  law,  but  for 
English  lawyers,  the  discovery  that  in  order  to  settle  satisfac- 
torily the  relations  of  married  life,  it  is  sufficient  to  rely  on  the 
personal  obligations  of  the  married  couple.  You  compel  them 
to  live  together,  you  settle  their  rights  over  their  children,  you 
regulate  their  power  of  binding  one  another  by  contract ;  their 
dealings  with  one  another's  property  you  leave  them  to  settle  in 
the  way  which  seems  best  to  them  ;  and  if  bad  is  the  best,  you 
believe  that  by  minute  legislation  you  cannot  make  it  better. 

SMALL    CAUSE    COURTS 
December  16,  1S64. 

The  object  of  the  Bill  referred  to  in  the  following  speech  (which  be- 
came law  as  Act  XL  of  1865)  was,  first,  to  consolidate  the  previous 
Acts  relating  to  Courts  of  Small  Causes  in  the  Mufassal,  and,  secondly, 


2IO  SPEECHES   OF   SIR   HENRY   MAINE 

to  provide  judicial  machinery  which  might  dispose  of  the  petty  civil 
htigation  of  India  without  compeUing  the  Htigant  to  have  recourse  to 
an  appeal,  but  at  the  same  time  without  depriving  him  in  any  con- 
siderable degree  of  the  securities  for  justice  which  are  at  present 
afforded  by  the  appeal  system.  It  also  created  the  offices  of  Registrar 
and  Judge  Extraordinary. 

In  introducing  the  Bill  and  moving  that  it  be  referred  to  a  select 
committee  Mr.  Maine  spoke  as  follows  : 

This  Bill,  on  its  first  appearance,  attracted  some  interest 
and  excited  much  discussion.  I  do  not  think  that,  in  its 
present  form,  objection  will  be  taken  either  to  its  principle 
or  to  its  details.  The  controverted  parts  of  the  Bill  were  the 
sections  relating  to  specific  performance,  which  I  have  now 
agreed  to  remove  to  the  code  of  my  honourable  friend  Mr. 
Harington,  where  no  doubt  their  proper  place  is.  Apart 
from  those  sections,  nobody  will  doubt  that  the  measure  will 
contribute  to  the  efficiency  of  the  Small  Cause  Courts,  and 
possibly  to  their  extension.  It  will  effect  some  mechanical 
improvements — considerable,  no  doubt,  but  still,  in  their 
nature,  chiefly  mechanical — in  the  organisation  of  those 
courts,  which  I  consider  one  of  the  greatest  of  the  benefits 
which  the  country  owes  to  my  honourable  friend  Mr. 
Harington.  In  one  sense,  indeed,  the  Bill  cannot  fail.  For 
it  only  empowers  the  Local  Government,  with  the  concurrence 
of  the  Governor  General  in  Council,  to  introduce  the  system 
which  it  creates  into  particular  districts  ;  and  if  experience 
and  observation  show  that  the  existing  arrangements  possess 
any  superiority,  it  will  always  be  possible  to  re-establish  them. 

If  one  watches  the  practical  working  of  Small  Cause  Courts 
— and  no  one  has  observed  them  with  greater  attention  or 
interest  than  I  have — one  cannot  help  being  struck  that  the 
principal  drawback  on  the  efficiency  of  the  system,  in  Bengal 
at  all  events,  is  connected  with  these  courts  being  isolated 
tribunals.  Whether  or  not  that  was  intended  by  Mr. 
Harington,  I  do  not  know.  But  it  is  the  fact  that  Small 
Cause  Courts  in  the  Mufassal  are  mainly  isolated  tribunals, 
presided  over  by  a  single  judge.  The  result  is  that,  if  a 
neighbourhood  be  thickly  populated,  and  litigation  be  con- 
sequently active,  the  Government  can  afford  to  establish  a 


SMALL   CAUSE   COURTS  211 

court  with  a  judge  of  capacity,  and  to  allot  to  him  an 
adequate  salary.  If,  however,  the  population  be  sparse, 
and  there  be,  therefore,  little  litigation,  then,  as  a  Small 
Cause  Court  is  an  expensive  court  to  the  extent  to  which 
its  cost  is  not  covered  by  its  stamps,  the  Government 
cannot  take  upon  itself  the  charge  involved  in  the  establish- 
ment of  a  court  of  the  first  class.  It  is,  therefore,  driven 
to  the  alternative  of  either  appointing  an  inferior  judge 
on  a  lower  salary,  or  of  joining  other  judicial  functions  to 
those  of  the  Small  Cause  Court.  Both  those  expedients  seem 
to  me  violations  of  the  principle  on  which  Small  Cause  Courts 
are  founded.  Presently  I  will  say  what  that  principle  appears 
to  be.  It  is  enough  now  to  state  that  the  obvious  remedy  is 
to  link  courts  of  the  lower  class  together  in  groups,  so  that 
the  suitors  may  have  the  advantage  at  all  events  of  occasional 
and  periodical  visits  by  judges  of  capacity.  The  Bill  there- 
fore provides  for  a  judge  of  the  first  class  going  circuit  among 
these  courts,  under  rules  to  be  laid  down  by  the  Local 
Government.  Certainly,  if  we  stopped  there,  I  am  not  sure 
that  the  system  would  not  break  down  ;  for  in  every  court 
there  is  a  great  mass  of  routine  business  to  be  done,  and  a 
good  deal  of  business  which  I  should  call  '  semi-judicial.' 
By  this  last  name  I  should  distinguish  such  duties  as  examin- 
ing the  plaint,  or  passing  decrees  in  unopposed  suits  ;  and 
I  should  call  '  routine  business '  that  which  is  described  in 
sections  32  and  34  of  the  Bill.  Such  business  imposes  at 
present  a  heavy  burthen  on  judges,  and  it  would  become  more 
onerous  if  judges  only  paid  periodical  visits,  and  stayed  but 
for  a  limited  time.  For  remedy  of  this,  the  Bill  adopts  an 
English  plan  which  has  been  very  successful  wherever  a  group 
of  courts  subordinate  to  some  great  court  has  been  established 
■ — as,  for  example,  in  the  case  of  the  English  Courts  of  Bank- 
ruptcy. A  special  officer  is  appointed  to  dispose  of  the 
routine  and  of  the  semi-judicial  business,  subject,  as  to  the 
latter,  to  the  revision  of  the  judge.  Wc  call  him  b}'  the 
English  term  registrar.  He  will  not  be  a  mere  clerk,  but 
will  be  strictly  subordinate  to  the  judge.  In  most  cases  I 
suppose  that  he  will  be  a  Native  gentleman  of  about  the 
standing  of  a  munsif      I  can  conceive  no  better  school  for 


212  SPEECHES   OF   SIR   HEx\RY   MAINE 

higher  judicial  employment,  and  the  Bill  provides  that,  when 
his  capacity  is  assured,  he  may  have  jurisdiction  conferred 
upon  him  up  to  a  certain  small  amount,  stated  formally  at 
fifty  rupees. 

I  anticipate  no  opposition  to  the  commitment  of  the  Bill. 
But  I  may  take  this  opportunity  of  stating  my  views  as  to 
the  principles  which  govern  the  constitution  of  Small  Cause 
Courts— principles  which  seem  to  me  to  be  greatly  misunder- 
stood in  India.  It  appears  to  be  generally  believed  in  this 
country  that  a  Small  Cause  Court  is  created  by  the  simple 
expedient  of  cutting  off  an  appeal.  I  can  only  explain  such 
an  impression  by  reference  to  the  intolerable  practical  evils 
which,  before  the  enactment  of  the  Code  of  Civil  Procedure 
and  other  recent  laws,  were  caused  by  the  extravagant  facilities 
which  the  law  furnished  for  appeals.  I  have  here  a  well- 
known  book — the  work  of  Mr.  Gubbins  on  the  mutinies  in 
Oudh.  Into  the  later  editions  the  author  introduced  some 
passages  (written,  I  should  say,  before  the  Civil  Procedure 
Code  became  law,  though  published  afterwards),  in  which  he 
describes,  not  the  causes  of  the  mutiny  (for,  like  most  com- 
petent observers,  he  thinks  the  ostensible  cause  to  have  been 
the  true  one),  but  the  grievances  which  ought  to  be  removed 
before  our  administration  can  be  entitled  to  that  character  of 
beneficence  which  it  claims. 

'A  still  greater  source  of  weakness  in  our  civil  executive  is  found 
in  the  cumbrous  and  unsuitable  mass  of  law  with  which  our  Indian 
officers  are  shackled,  and  the  numberless  appeals  to  which  their 
orders  are  subjected.  Speedy  and  cheap  justice  is  what  is  wanted 
in  India  ;  but  any  speedy  and  cheap  decision  would  be  better  than 
what  we  give  the  people,  viz.  slow  and  expensive  law.' 

What,  then,  Mr.  Gubbins  says  is  simply  this  :  Give  us 
cheap  and  speedy  justice  if  you  can  ;  if  you  can't,  give  us  at 
any  rate  cheap  and  speedy  decision.  Now,  sir,  although  I 
have  been  sometimes  assumed  to  have  been  unreasonably 
hostile  to  appeals,  I  cannot  say  that  I  can  go  so  far  as  that 
conclusion,  to  which  Mr.  Gubbins  was  conducted  by  his  prac- 
tical experience  of  India.  If  I  supposed  that  an  appeal 
furthered  justice,  I  should  no  more  dream  of  dispensing  with 
it  than  I  should  of  deciding  a  suit  by  tossing  up  a  rupee — which 


SMALL   CAUSE   COURTS  213 

is  both  a  cheap  and  a  speedy  method  of  decision.      I  say  that 
if  you  organise  a  Small  Cause  Court  properly,  an  appeal  would 
not  further  but  obstruct  justice.     My  theory  of  a  Small  Cause 
Court  is  that,  from  the  limitation  of  the  suits  to  claims  of  a 
certain  nature,  it  is  almost  exclusively  a  court  for  the  solution 
of  questions    of   fact.     Hence    by  considerably — not    extra- 
ordinarily, but  considerably — elevating  the    capacity  of  the 
judge,  you  are  able  to  utilise  to  the  utmost  those  inherent 
and  natural  advantages  which  every  court  of  first  instance 
possesses  in  the  decision  of  facts  ;  that  is,  you  are  able  to 
accept  its  decision  in  preference  to  that  of  any  other  court 
which  has  not  actually  seen  the  witnesses  and  observed  their 
demeanour.      I  am  aware  that  I  here  approach  the  point  upon 
which  there  is  most  difference  of  opinion  between   English 
lawyers  and  the  gentlemen  belonging  to  the  judicial  branch 
of  the  Civil  Service.      I   should  describe  the   Indian  judicial 
system,  apart  from  the  original  jurisdiction  of  the  High  Courts, 
as  an  exaggeration  of  that  which  is  established  in  France. 
The  weakest  parts  of  the  system  are  those  at  the  bottom,  the 
courts  of  first  instance  ;  but  their  weakness  is  acquiesced  in, 
because  it  is  believed  that  a  strong  Court  of  Appeal,  sitting 
at  a  distance,  and  reading  the  evidence  on  paper,  can  suc- 
cessfully correct    their    mistakes.     Now,  in  England,  in  the 
Courts  of  Common  Law,  which  are  the  great  courts  for  the 
solution  of  questions  of  fact,  a  strong  court  of  first  instance — 
probably  the  strongest  in  the  world,  a  judge  and  jury — is  at 
once  placed  in  contact  with  the  witnesses,  and  then  its  decision 
is  accepted  as  conclusive  by  all  other  tribunals.     Verdicts  are 
sometimes  disturbed.     But  the  court  setting  them  aside  does 
not  substitute  its  owm  view  of  the  facts  ;  it  sends  the  case 
back  to  be  tried  by  another  jury.     Taking  into  account  the 
simplicity  of  the  questions,  the  same  principle  is  applied  in 
the  County  Courts  also.     Hence  the  astonishment — for  I  can 
use  no  other  term— of  an  English  lawyer  new  to  India,  at 
the  system  of  regular  appeal   under  which  Courts  of  Appeal 
freely  substitute  their  own  theor}'  of  the  facts  for  the  view  of 
them  taken  by  the  court  below,  which  heard  the  story  of  the 
witnesses  from  their    own  lips.      I   admit   that  this    surprise 
somewhat    diminishes    on     further    acquaintance    with    the 


214  SPEECHES   OF   SIR    HENRY   MAINE 

country  ;  for  it  is  true  that,  owing  to  the  uniformity  of  habit 
and  inveteracy  of  routine  among  the  people  of  India,  it  is 
possible  to  conjecture  what  took  place  in  a  certain  case  with 
a  far  higher  degree  of  probability  than  could  be  attained  in 
the  active  and  diversified  societies  of  Europe.      I   maintain, 
however,  that  the  characteristic  fault  of  the  Indian  judicial 
system    is,    that    it    greatly    under-estimates    the    inherent 
advantages  possessed  by  courts  of  first  instance,  and  greatly 
overrates  the  power   of  correction  possessed  by  a  Court  of 
Appeal.     I  will  cite  two  cases  which  illustrate  the  difference 
of  theory.     The  first  is  rather  remarkable  for  this  reason  ;  it 
was  a  question  of  fact  tried  by  the  Court  of  Chancery.     Until 
recently,  Courts  of  Equity  in  England  so  far  resembled  the 
Indian  courts  that  they  relied  mainly  upon  paper  evidence, 
and  it  was  only  a  certain  class  of  cases  which  they  sent  to  be 
tried  in  the  form  of  an  issue  by  the  Courts  of  Common  Law. 
Recently,  however,  the  belief  that    no   decision  on  facts    is 
trustworthy  which  was  not  arrived  at  after  actual  examination 
of  the  witnesses  has  so  gained  ground  that,  by  late  statutes, 
these  courts  have  been  permitted  and  directed  to  examine 
witnesses  in  open  court.     The  case   I  quote  had,  I  fear,  thus 
much  of  resemblance  to  an  Indian  case,  that  the  plaintiff  and 
her  witnesses  all  swore  to  one  thing,  while  the  defendant  and 
all  his  witnesses  swore  to  the  exact  contrary.      Here  are  a  few 
words  from  the  judge  who  tried  the  case,  one  of  the  ablest 
and  most  patient  on  the  bench,  Vice-Chancellor  Kindersley  : 

'  Tn  that  state  of  things,  there  being  oath  against  oath,  inasmuch 
as  the  onus  lay  on  the  plaintiff,  who  alleged  the  promise,  the  decision 
must  be  against  her,  unless  there  were  other  circumstances  not  in 
dispute  sufficient  to  lead  to  the  conclusion  that  the  defendant  was 
not  speaking  the  truth.  His  Honour  thought  there  were — first,  the 
letter,  and  then  the  interviews  with  Mr.  Starling,  and  the  pause  and 
most  expressive  silence  of  the  defendant.' 

Now,  in  an  Indian  regular  appeal,  I  should  like  to  know 
what  became  of  that  pause  and  expressive  silence,  which  were 
obviously  the  most  important  material  for  conclusion  in  the 
judgment  of  the  Vice-Chancellor.  Would  they  be  described 
on  the  record,  and,  if  so,  what  effect  would  they  have  on  the 
Sadr    Court  .-•     Is    it  not  clear  that  an    Indian    court  would 


SMALL   CAUSE   COURTS  21$ 

have  followed  what,  no  doubt,  is  the  presumption  of  law  until 
displaced  by  contrary  evidence?  In  other  words,  it  would 
have  done  injustice  and  not  justice. 

My  next  case  is  one  which  I  have  to  ask  your  Excellency's 
pardon  for  mentioning,  as  your  name  occurs  in  it.  But  it  is 
so  instructive  that  I  must  quote  it  in  the  interest  of  my  argu- 
ment.    I  take  it  from  Mr.  Gubbins'  account. 

'I  recollect,  in  1842,  when  magistrate  of  Delhi,  that  I  obtained 
information  of  a  noted  forger,  a  Mussulman,  who  resided  in  the  city. 
He  had  carried  his  craft  into  matters  which  came  before  me 
criminally,  and  I  lost  no  time  in  attacking  him. 

'  It  was  deposed  before  me  that  forgery  was  his  business  ;  that  he 
kept  a  variety  of  seals  of  different  names,  and  a  large  apparatus  of 
all  that  was  necessary  to  carry  on  his  iniquitous  trade,  within  his 
house.  His  arrest  and  the  search  of  his  house  were  carefully  arranged 
and  successfully  accomplished. 

'  The  articles  seized  carried  convincing  proof  of  his  guilt.  He 
was  committed  for  trial  on  a  charge  of  fraud  and  forgery  ;  and  John 
Lawrence  (now  Sir  John)  presided  as  judge.  He  was  convicted  ; 
and  a  sentence  of  imprisonment  for  five  years  was  passed.  This  was 
justice.  But  next  came  law  ;  and,  by  the  aid  of  the  law,  the  forger 
came  off  victorious.  He  appealed  to  the  Sadr  Court  of  Agra  ; 
and,  ere  long,  a  warrant,  commanding  the  release  of  the  forger,  was 
received  !  The  Court  were  not  satisfied  that  the  proof  was  legally 
sufficient.  And  the  magistrate  was  cautioned  to  be  careful  how  he 
searched  the  houses  of  respectable  men.' 

It  is  difficult  to  conceive  a  more  illustrative  case.  Every- 
thing here  turned  obviously  on  ocular  inspection.  It  was  the 
eye,  and  the  eye  alone,  that  could  decide  whether  the  sinister 
look  of  the  articles  proved  them  to  be  the  implements  of  a 
forger.  But  the  Sadr  Court,  with  the  usual  Indian  con- 
fidence in  paper  descriptions,  decided,  and  most  naturall}', 
that  the  proof  was  insufficient. 

These  are  extreme  cases  ;  but  every  system  must  be  tested 
by  extreme  cases.  I  do  not,  however,  wish  to  make  any 
stronger  assertion  than  this — that  here  we  greatly  underrate 
the  natural  advantages  of  courts  of  first  instance,  and  set  far 
too  high  a  value  on  the  corrective  power  of  Courts  of  Appeal. 
It  is  no  answer  to  me  to  say  that  our  judges  of  first  instance 
are  negligent  and  incompetent ;  that,  even  under  the  check  of 
appeal,  they  take  down  the  evidence  imperfectly,  and  that  it 


2l6  SPEECHES   OF   SIR    HENRY   MAINE 

would  never  do  to  trust  them  to  form  irreversible  conclusions 
on  questions  of  fact.  All  that  may,  unhappily,  be  too  true  ; 
but  my  doubts  attach  to  the  Court  of  Appeal.  I  doubt 
whether,  under  the  existing  conditions  of  the  human  mind,, 
it  is  possible  successfully  to  set  right,  more  than  to  a  very 
limited  extent,  the  mistakes  committed  in  a  court  of  first 
Instance.  In  reading  a  great  Indian  case  (we  sometimes  see 
them  at  home  in  the  records  of  the  Privy  Council,  and  I 
admit  that  I  speak  of  a  time  before  the  worst  extravagances 
of  appeal  were  pruned  away),  it  has  often  struck  me  when  I 
have  seen  the  Zila  judge  starting  some  ingenious  theory 
over  the  head  of  the  principal  Sadr  Ami'n,  and  the  Sadr 
Court  showing  itself  still  more  ingenious  than  the  Zila 
judge,  and  the  Privy  Council  (though  it  did  not  often  sin  in 
that  way)  perhaps  showing  itself  more  ingenious  than  all — it 
has  often  struck  me,  I  say,  that  the  process  might  after  all  be 
like  a  long  mathematical  problem,  in  which,  if  you  make  a 
mistake  in  the  first  stage,  the  error  only  becomes  worse,  and 
vitiates  the  conclusion  more  hopelessly,  in  proportion  as  the 
calculation  mounts  higher  up,  and  becomes  more  intricate. 

But  while  I  lay  down  theoretically  that  courts  of  first 
instance  possess  advantages  which  no  Courts  of  Appeal  enjoy> 
my  practical  conclusion  is  a  very  simple  one.  It  is  this  : 
improve  your  courts  of  first  instance,  and,  to  the  extent  of 
your  judicial  material,  establish  these  Courts  of  Small  Causes. 
It  will  be  seen  why  I  object  to  inferior  Courts  of  Small  Causes. 
An  inferior  court  of  this  kind  is  not  only  a  waste  of  public 
money  and  an  injury  to  the  litigants,  but  a  standing  sin 
against  principle.  The  proper  course  is  to  improve  your 
judge  till  you  can  save  the  appeal.  Very  moderate  improve- 
ment is,  however,  sufficient.  So  great  are  the  natural  ad- 
vantages possessed  by  courts  of  first  instance,  that  a  moderate 
elevation  of  the  standard  of  capacity  goes  a  long  way.  Fair 
legal  knowledge,  honesty,  good  sense,  and  familiarity  with 
the  language  and  customs  of  the  people  will  suffice. 

Two  points  remain  to  be  noted.  It  may  be  said  to  me — 
granting  all  you  say  as  to  questions  of  fact,  why  not  give  an 
appeal  on  points  of  law  ?  Now,  I  have  no  objection  on  prin- 
ciple to  the  form  of  appeal  known  as  special  appeal.     But  the 


SMALL   CAUSE   COURTS  21/ 

difficulty  is,  to  whom  shall  the  appeal  lie  ?  You  cannot  send 
the  litigants  in  these  small  cases  hundreds  of  miles  to  the 
Sadr  Court  ;  and  if  we  did  give  such  power  of  appeal  we 
may  be  sure  that  it  would  be  frightfully  abused.  And  then, 
as  to  the  Zila  judge.  Without  meaning  the  smallest  dis- 
respect to  the  Zila  judges,  I  must  say  that,  if  the  Small 
Cause  Courts  were  properly  organised  (I  admit  the  condition 
is  all-important),  there  would  be  no  such  superiority  in  the 
Zila  judge  as  would  warrant  an  appeal  of  right  being  given 
to  him  from  the  Small  Cause  Court  judge  on  the  simple  points 
of  law  which  arise,  and  that  rarely,  in  the  Small  Cause  Courts. 
The  existing  system  of  allowing  the  judge  to  state  a  case  for 
the  Sadr  Court  at  his  own  pleasure  seems  infinitely  the 
best  ;  and  the  more  you  improve  the  capacity  of  your  judges, 
the  more  freely,  you  may  be  sure,  will  they  state  cases  on 
questions  on  which  there  may  be  genuine  cause  for  doubt. 

I  must  not  conclude  without  making  the  admission  that 
appeals  have  one  indirect  advantage,  that  they  do  serve  as  a 
mode  of  supervision.  Whether  it  be  true  or  not  that  the 
Court  of  Appeal  can  correct  the  mistakes  of  the  court  below> 
it  is  an  important  consideration  that  the  judge  below  thinks 
it  can  ;  and  under  this  impression  a  negligent  judge  may  do 
his  work  better.  I  think  it  very  desirable  that  Small  Cause 
Courts  should  be  under  supervision  ;  but  far  the  best  mode  of 
supervision  appears  to  me  to  be  the  bringing  of  a  second  mind 
to  bear  on  the  business  of  the  court.  I  therefore  attach  very 
high  importance  to  the  provisions  of  the  Bill  for  the  appoint- 
ment of  judges  extraordinary.  Under  these  proA'isions,  the 
Local  Government  may  invest  any  judicial  officer  or  person 
of  legal  learning  with  the  power  of  assisting,  occasionally 
or  periodically,  in  the  conduct  of  the  jurisdiction  of  a  Small 
Cause  Court.  Ordinarily,  the  person  so  empowered  \\'ill 
doubtless  be  the  Zila  judge  ;  but  in  the  vicinity  of  the  pre- 
sidency towns,  I  am  not  without  hope  that  he  may  be  a 
member  of  the  Presidency  Bar,  if  we  can  find  one  who  can 
spare  the  time,  and  is  reasonably  w^ell  acquainted  with  the 
language.  The  report  of  such  a  judge  extraordinary,  on  the 
manner  in  which  the  business  of  the  court  is  conducted,  will 
carry  with  it  a  supervision  not  less  effective  and  more  con- 
sistent with  principle  than  any  appeal  whatsoever. 


21 8  SPEECHES   OF   SIR   HENRY   MAINE 

PARTNERSHIP  'EN  COMMANDITE' 
December  i,  1865. 

The  Bill  referred  to  in  the  following  speech  was  with  one  addition 
and  one  omission  copied  from  the  English  statute  27  &  28  Vic. 
chap.  86,  section  i  of  which,  by  simply  abolishing  an  objectionable 
legal  principle,  known  as  the  rule  in  IVaugh  v.  Carver  {2  H.  Bl.  235), 
is  expected  to  produce  the  same  effects  as  the  French  system  of 
partnership  en  commandite.  That  section  provides  that  the  loan  of 
money  to  a  trader  upon  a  contract  in  writing  that  the  lender  shall  re- 
ceive a  rate  of  interest  varying  with  the  profits,  or  shall  receive  a  share 
of  the  profits,  shall  not,  of  itself ,  make  him  a  partner. 

The  remaining  sections  abolish  certain  other  corollaries  from  the 
principle  that  a  person  sharing  profits  shall  be  liable  to  third  parties 
as  if  he  were  a  partner. 

Section  2  provides  that  remuneration  of  servants  or  agents  by  a 
share  of  the  profits  shall  not  of  itself  xq.\\i^q.x  them  partners  (^.v  parte 
Bigby,  I  Deac.  341). 

Section  3  provides  that  widows  or  children  of  deceased  partners, 
receiving  by  way  of  annuity  a  portion  of  the  profits,  shall  not,  by 
reason  only  of  such  receipt,  become  partners  {Re  Kolbeck,  Buck,  48). 

Section  4  provides  that  the  receipt  of  portion  of  the  profits  in  con- 
sideration of  the  sale  of  the  goodwill  of  a  business  shall  not,  by 
reason  only  of  such  receipt,  make  the  seller  a  partner  {Barry  v.  A%ham, 
3C.  B.  641). 

The  addition  above  referred  to  is  that  of  an  explanation  to  the 
effect  that  a  retiring  partner,  leaving  in  the  business  the  value  of  his 
share,  shall  be  construed  to  make  a  loan  within  the  meaning  of  the 
first  section.  The  omission  above  referred  to  is  that  of  the  fifth  sec- 
tion of  the  English  statute,  which  provides  that,  in  case  of  the  bor- 
rower's insolvency,  the  commanditarian  lender  shall  not  be  entitled 
to  prove  in  competition  with  the  other  creditors.  This  provision 
would  have  seriously  limited  the  operation  of  the  enactment ;  and 
there  would,  moreover,  have  been  practical  difficulties  in  working  it 
in  the  Mufassal,  where  no  system  of  insolvency  had  yet  been  esta- 
blished.' The  Bill  became  law  as  Act  XV.  of  1866,  which  was  repealed 
by  the  Contract  Act  IX.  of  1872,  but  re-enacted  in  sections  240-244 
■of  the  latter  Act. 

Mr.  Maine,  in  moving  for  leave  to  introduce  a  Bill 
to  amend  the  Law  of  Partnership  in  India,  said  that  the 
Bill  was,  with  some  alterations  necessitated  by  Indian 
procedure,    transcribed    from    a    statute    which    passed    the 

'  See  now  the  Code  of  Civil  Procedure,  sees.  344-360. 


PARTNERSHir   '  KN    COMMANDITE'  219 

British    Parliament  durini;-    the    last   session.     If  it    became 
law  he  hoped  it  would  have  the  same  effects  as  the  French 
system  of  partnership  en  coinnianditc.     He  had  called  atten- 
tion at  the  last  sittings  to  the   subject    of  commanditarian 
partnership,  not  because  he  had  a  distinct  proposal  to  offer, 
but  because  he  thought  opinion  in  England  ripe  for  a  change 
in  the  rule  of  liability,  and  because  he  considered  that  there 
were  even  more   reasons  for  the  subject  to  be  discussed  in 
India  than  called  for  its  discussion  at  home.      If  the  matter 
had  gone  further,    and  he   had   proposed    that    the    Council 
should  pass  the  only  Bill  which  was  then  before  the  British 
Parliament,  he  should  have  stated  that,  however  desirable  it 
might  be  to  pass  the  Bill  as  a  temporary  measure,  there  were 
some  strong  objections  to  it  as  it  was  framed.     The  Bill  was 
well  drawn    in  a  technical  point  of  view,  but  practically  it 
adopted  the  whole   of  the  French   rules   on  the    subject    of 
commanditarian   partnership  ;    and   many  of   these  rules  he 
considered  to  be  greatly  at  variance  with  English  commercial 
habits.     In  the  first  place,  the  necessity  of  publicly  registering 
advances    made    upon    limited    liability    was    imposed  ;    and 
although  he  hoped  to  be  able  to  show  that  such  advances 
really  tended  to  strengthen  instead  of  weaken  the  firm  which 
received  them,  yet  he  believed  that  the  effect  of  registration 
would  be  to   cast  discredit  on  the  firm  taking  advantage  of 
the  new  law,   and  thus   the  operation  of  the  Act  would  be 
greatly  narrowed.     The  Bill,  moreover,  contained  the  minute 
provisions  of  the  French  law  as  to  the  extent  to  which  the 
limited  partner  might  interfere  with  the  business.    Mr.  Maine 
thought  it  would  practically  be  found  that  the  persons  who 
would  most  justifiably  engage  in  commanditarian  transactions, 
namely,  the  non-mercantile  classes  and  women,  would,  out  of 
mere  nervousness  and  anxiety,  and  without   knowing  what 
they  were  doing,  bring  themselves  within  the  danger  of  the 
prohibitions,    and    thus    be    involved    in    unlimited    liability. 
Entertaining  these  objections,  he  would  probably  have  added 
that  there  appeared  to  him  a  much  simpler  way  of  attaining 
the  same  end.     There  was   only  one  single  rule  of  English 
law — and  that  not   a  venerable   rule — in    the  way   of  com- 
manditarian investments,  and  he  would  have  expressed  the 


220  SPEECHES   OF   SIR   HENRY   MAINE 

hope  that,  when  the  Indian  Law  Commissioners  sent  out  the 
next  part  of  the  new  civil  code,  they  would  be  found  to  have 
omitted  the  objectionable  rule.  Happily,  Parliament  had 
followed  the  very  course  which  he  expected  the  Law  Com- 
missioners to  take.  It  had  repealed  the  rule  in  question  ;. 
and  in  this  instance  had  not  incurred  the  reproach  so  often 
directed  against  English  legislation,  that  when  the  conse- 
quences of  a  legal  principle  become  inconvenient,  it  never 
ventures  to  repeal  the  principle,  but  merely  cuts  off  the  in- 
conveniences.     He  would  read  the  first  section  of  the  Bill  : 

'  The  advance  of  money  by  way  of  loan  to  a  person  engaged 
or  about  to  engage  in  any  trade  or  undertaking,  upon  a  contract  in 
writing  with  such  person  that  the  lender  shall  receive  a  rate  of  interest 
varying  with  the  profits,  or  shall  receive  a  share  of  the  profits  arising 
from  carrying  on  such  trade  or  undertaking,  shall  not,  of  itself,  con- 
stitute the  lender  a  partner  with  the  person  or  the  persons  carrying 
on  such  trade  or  undertaking,  or  render  him  responsible  as  such.' 

The  rule  adverted  to  was  of  course  that  which  the  section 
disaffirmed.  Then  followed  one  of  those  convenient  explana- 
tions invented  by  Lord  Macaulay  and  introduced  into  the- 
Penal  and  Civil  Procedure  Codes  : 

'A  person  who  being  entitled,  whether  as  a  retiring  partner  or 
otherwise,  to  demand  and  receive  present  payment  of  the  value  of 
any  share  or  interest  of  or  in  the  capital  or  other  funds  of  a  business 
shall,  after  the  value  thereof  shall  have  been  ascertained  between 
such  person  and  the  person  or  persons  liable  to  pay  the  same,  allow 
the  same  to  remain  therein  or  to  be  used  by  such  person  or  persons 
for  the  purposes  of  such  business,  shall  be  construed  to  make  an 
advance  of  money  by  way  of  loan  within  the  meaning  of  this  section.'' 

Mr.  Maine  then  continued  :  It  would  perhaps  be  enough 
if  I  stopped  there  and  asked  leave  to  introduce  the  Bill 
merely  as  copied  from  an  English  statute.  In  matters  of 
mercantile  law  it  is  obviously  desirable  that  Indian  should 
follow  English  legislation.  But  as  it  may  not  be  clear  how 
the  objects  attained  by  commanditarian  partnership  are 
secured  by  a  measure  like  this,  I  will  ask  the  Council  to  let 
me  say  a  few  words  as  to  the  probable  operation  of  the 
measure. 

I  will  begin  by  stating  that,  in  order  to  place  the  law  of 


PARTNERSHIP   'EN    COMMANDITE'  22  1 

partnership  on  the  reasonable  footing  on  which  it  is  placed 
by  the  Limited  Liability  Acts,  it  is  not  by  any  means  neces- 
sary to  discredit  the  general  principle  of  unlimited  liability 
between  partners  Even  if  I  thought  that  principle  irrational 
— which  I  do  not — I  should  never  venture  to  interfere  with 
it,  considering  the  extent  to  which  it  is  bound  up  with  all 
English  commerce.  But  all  that  is  necessary  is  to  set  aside 
certain  illogical  and  artificial  applications  of  it.  On  what, 
then,  does  the  principle  of  unlimited  liability  depend  ?  It 
depends  on  the  doctrine  that  partners  are  agents  for  one 
another  with  full  powers.  And  indeed  it  has  been  laid  down 
by  the  House  of  Lords  that  there  is  no  true  law  of  partner- 
ship in  England,  but  that  partnership  is  merely  a  department 
of  the  law  of  agency.  Just,  then,  as  an  agent  with  full  powers 
can  bind  his  principal  up  to  the  full  extent  of  his  means,  so 
one  partner  acting  within  the  sphere  of  the  business  can 
bind  the  others  up  to  the  full  extent  of  their  powers  of  pay- 
ment. 

If,  however,  we  reflect,  we  shall  see  that  there  are  some 
applications  of  the  principle  of  agency  to  partnership  which 
break  down.  The  principle,  for  example,  breaks  down  in  its 
application  to  large  joint-stock  associations,  because  the  very 
object  of  forming  those  associations  is  that  they  may  act 
through  an  agency  of  a  totally  different  description,  as,  for 
example,  a  board  of  directors.  There  is  no  reason,  nor  has 
there  ever  been  any  reason,  why  the  subscribers  should  not 
be  allowed  by  public  notice  to  declare  the  extent  to  which 
they  intend  to  limit  the  power  of  their  agents,  and  therefore 
their  own  liability.  This  privilege,  however,  of  limiting  their 
liability  was  conferred  on  them  by  recent  Joint-stock  Com- 
pany Acts.  But  at  the  same  time  I  think  that  Parliament, 
in  passing  those  Acts,  did  not  so  much  overturn  or  encroach 
upon  as  protect  the  rule  of  unlimited  liability  by  forbidding  a 
perverse  and  abusive  application  of  it.  It  is  still  more  in  the 
interest  of  the  general  principle  of  liability  that  the  rule  at 
which  the  first  section  of  the  Bill  is  aimed  should  be  set  aside. 
For  it  is  not  even  a  superficially  logical  consequence  of  the 
fundamental  principle.  The  fundamental  rule  is  that  partners 
are  agents  for  each  other  within  the  scope  of  their  business. 


222  SPEECHES   OF   SIR    HENRY   MAINE 

The  derivative  rule  is  that  a  man  becomes  a  partner  by  stipu- 
lating for  a  share  of  the  profits  of  a  trader  to  whom  he  makes 
an  advance.  There  is  no  apparent  connection  between  the 
two  propositions.  And  the  real  wonder  is  how  the  rule  made 
its  way  into  English  law.  It  is  not  an  old  rule  :  it  is  no  older 
than  the  time  of  Lord  Mansfield  ;  and  when  the  case  which 
established  it  ^  is  examined,  it  becomes  at  once  evident  that 
the  object  of  the  court  was  to  defeat  the  law  of  usury.  Put- 
ting aside  the  case  of  negotiable  instruments,  it  was  at  the 
time  illegal  to  stipulate  for  more  than  5  per  cent,  interest, 
and  when  a  person  had  bargained  for  more  than  the  legal 
rate,  not  only  did  the  contract  fail  as  regarded  the  excess 
above  the  legal  rate,  but  the  entire  contract  was  considered 
to  be  tainted  with  usury  and  was  wholly  invalid.  Of  course 
the  sound  ideas  which  now  prevail  on  the  subject  of  the 
interest  of  money  had  not  fully  made  their  way  into  men's 
minds.  But  still  people  were  to  some  extent  alive  to  the 
fallacy  underlying  the  usury  laws,  and  the  courts  of  law 
exerted  themselves  strenuously  to  prevent  their  absurdest 
consequences.  The  readiest  expedient  for  defeating  them 
was  to  rule  that  the  contract  which  was  the  subject  of  suit 
was  not  a  contract  of  loan  at  all,  but  a  contract  of  a  wholly 
diflferent  description.  Thus  in  the  case  before  Lord  Mansfield 
a  man  had  stipulated  that  he  should  be  remunerated  for  a 
loan  by  a  share  in  the  profits  of  a  trading  firm.  But  it  turned 
out  on  calculation  that  he  had  bargained  for  more  than  5  per 
cent,  on  his  advance.  The  legal  consequence  would  have 
been  that  the  contract  was  invalid.  This  Lord  Mansfield 
would  not  allow,  and,  ut  res  inagis  vakret  quain  periret,  ruled 
the  contract  to  be  one  of  partnership,  and  therefore  not 
invalid.  The  rule  thus  established  was  therefore  a  mere  legal 
fiction  invented  to  serve  a  temporary  purpose,  and,  as  usual, 
its  collateral  inconveniences  were  greater  than  its  immediate 
advantage.  It  has  very  justly  been  remarked  that,  as  the 
rule  originated  in  the  usury  laws,  so  it  was  doomed  when 
those  laws  were  abolished.  The  state  of  the  law  now  is  that 
a  man  may  stipulate  for  what  rate  of  remuneration  by  way  of 
interest  he  pleases,  so  long  as  the  rate  is  calculated  on  the 

'  Probably  Bloxam  v.  PcU,  2  \\.  PL  999. 


rARTNERsriir  'en  commandite'  223 

amount  of  the  advance.  If,  therefore,  a  Calcutta  merchant, 
on  retiring,  leaves  a  lakh  of  rupees  in  his  house  of  business 
and  bargains  for  80  per  cent,  on  his  ten  thousand  pounds, 
the  contract  is  perfectly  legal,  and  he  risks  nothing  more 
than  the  lakh  of  rupees.  But  if  he  leaves  the  same  sum  in 
the  business  and  stipulates  for  8  or  10  per  cent,  on  the 
profits,  he  endangers  every  shilling  and  every  acre  he  pos- 
sesses. It  is  needless  to  say  which  is  the  fairer  arrangement. 
One  is  perfectly  just  and  the  other  sucks  the  very  life-blood 
out  of  the  firm.  Yet  it  is  the  policy  of  the  law  to  discourage 
the  more  equitable  and  to  encourage  the  more  inequitable 
arrangement.  I  venture  to  lay  down  broadly  that  no  argu- 
ment whatever  can  be  directed  against  the  proposed  change 
of  the  law  which  will  not  tell  with  tenfold  force  against  the 
law  as  it  is. 

As  to  possible  objections  to  the  Bill,  though  they  are 
more  properly  dealt  with  at  another  stage,  I  will  notice 
one  which  is  very  commonly  taken,  because,  while  it  is  ex- 
tremely obvious,  the  answer  to  it  is  not  immediately  obvious 
to  anybody  but  a  lawyer.  It  may  be  asked,  if  you  allow 
persons  to  advance  money  with  limited  liability  upon  condi- 
tion of  sharing  the  profits,  what  security  have  you  that 
capitalists  will  not  begin  to  trade  through  clerks  and  agents 
who  are  men  of  straw,  while  at  the  same  time  they  will  risk 
less  than  other  traders  ?  I  might  reply  by  saying  that 
capitalists  might  do  it  now  if  they  framed  their  contracts 
properly.  The  best  answer,  however,  is  that  this  Bill  provides 
no  more  than  that  a  stipulation  for  a  share  in  the  profits  shall 
not  by  itself  constitute  the  lender  a  partner.  Such  a  stipula- 
tion will  still  remain  one  of  the  indicia  of  partnership,  but  it 
will  no  longer  be  conclusive.  If  there  is  something  more,  if 
the  contract  bargains  for  such  powers  of  interference  or  of 
removing  the  ostensible  partners,  as  show  that  they  were 
intended  to  be  merely  agents,  or  if,  without  reference  to  the 
letter  of  the  contract,  such  powers  are  shown  to  have  in  fact 
been  exercised,  in  such  a  case  there  will  be  other  ingredients 
present.  The  courts  in  the  exercise  of  their  ordinary  juris- 
diction will  no  doubt  apply  the  principle  of  agency  and 
construe  the  lender  to  be  the  partner  of  the  ostensible  traders. 


224  SrEECHES   OF   SIR   IlENRV    MAINE 

And  I  would  much  rather  trust  the  courts  to  put  a  stop  to 
these  malpractices  than  introduce  the  minute  rules  of  the 
French  law,  which  are  sure  to  prove  snares  to  the  unwary. 
Meantime  any  merchant  retiring  and  leaving  any  sum  of 
money  in  his  business,  and  merely  bargaining  for  such  a 
power  of  inspecting  the  books  as  will  give  him  reasonable  in- 
formation as  to  the  state  of  the  firm,  will  be  perfectly  safe, 
•and  will  merely  risk  the  amount  which  he  has  deliberately 
staked. 

I  will  conclude  by  remarking  that,  even  if  I  thought 
the  expediency  of  the  new  law  in  England  as  doubtful  as  I 
think  it  clear,  there  would  still  be  special  reasons  for  altering 
the  rule  of  liability  in  India.  In  the  first  place,  I  am  told  by 
a  high  authority  that  the  Natives  of  India  practise  among 
themselves  a  system  of  commanditarian  partnership,  and  that, 
for  example,  a  capitalist  in  Calcutta  or  Delhi  will  advance 
money  to  a  merchant  in  Malwa  or  Rajputana  on  condition 
of  being  remunerated  by  a  share  in  the  trading  profits.  But 
I  hear  also  that  the  system  is  giving  way  under  the  influence 
of  English  law,  directly  in  the  presidency  towns,  and  indirectly 
in  the  Mufassal.  But  it  is  chiefly  in  the  interest  of  the  Euro- 
pean firms  doing  business  in  the  presidency  towns  that  I 
believe  the  new  law  to  be  desirable.  I  shall  not  be  contra- 
dicted when  I  say  that  the  constitution  of  those  firms  is 
generally  as  follows  : — There  is  a  series  of  partners  who  come 
out  one  or  two  at  a  time.  Each  expects  to  remain  a  moderate 
time  in  the  country,  to  realise  a  fortune,  and  to  carry  it  home 
on  retirement.  If  he  obeyed  natural  motives,  the  retiring 
partner  would  leave  a  large  portion  of  his  fortune  in  the 
business,  because  the  interest  he  would  receive  would  be 
much  more  than  was  obtainable  in  open  market,  and  because 
he  would  be  apt  to  have  confidence  in  partners  who  would 
succeed  him  and  whom  he  has  himself  chosen.  But  this 
rule  of  English  law  stands  in  the  way,  and  years  after- 
wards, the  indiscretion  of  a  partner  whom  he  has  never  seen 
may  cost  him  the  whole  of  his  property.  The  direct  tendency, 
therefore,  of  the  existing  law  appears  to  be  this.  It  produces 
withdrawals  of  capital  on  retirements  of  partners  in  a  country 
where  those  retirements  are  extraordinarily  frequent.      The 


rARTNERSIIIP   'EN    CO^rMANDITE'  22$ 

process  is,  however,  insensible  :  the  public  knows  nothing 
about  it,  and  hence  the  credit  and  operations  of  the  firm  may- 
remain  the  same  as  before.  I  know,  indeed,  my  honourable 
friends  will  doubtless  tell  us  that  the  evil  is  much  mitigated 
by  private  arrangements  among  the  partners,  under  which  it 
is  agreed  that  retiring  partners  shall  not  withdraw  more  than 
a  certain  amount  of  capital  within  a  certain  time  ;  and,  indeed, 
I  will  add,  to  prevent  any  misconstruction  of  my  words,  that 
the  great  actual  stability  of  the  leading  firms  in  the  presidency 
towns  proves  that  some  process  is  going  on  which  counteracts 
the  tendency.  Still  the  tendency  is  distinct,  and  we  may 
depend  that  in  such  a  case  it  has  effect  in  more  instances 
than  we  are  aware  of,  and  perhaps  in  the  majority  of  instances. 
That  tendency  is  to  withdraw  capital  without  diminishing 
credit,  which  is  the  most  unwholesome  state  of  things  that 
can  possibly  exist  in  trade.  This  is  not  a  speculative  opinion 
of  mine  :  indeed  I  should  not  venture  a  speculative  opinion 
on  such  a  point.  I  had  lately  the  advantage  of  conversing  on 
this  subject  with  a  gentleman  who  was  formerly  Chief  Justice 
of  the  Supreme  Court  here,  and  he  was  convinced  that  certain 
insolvencies  which  were  felt  at  the  time  throughout  India  as 
public  calamities — insolvencies  of  a  kind  which  never  occur 
nowadays — were  due  to  subtractions  of  capital  through  fear 
of  unlimited  liability.  I  have  obtained  the  schedules  of  those 
insolvencies  from  the  Insolvent  Court,  and  so  far  as  I  can 
understand  their  story,  it  seems  to  me  to  bear  out  that  theory. 
And  with  regard  to  the  question  whether  advances  on  limited 
liability  should  be  publicly  registered,  I  must  say  that  it 
struck  me  on  reading  these  schedules  that  it  would  be  much 
fairer  and  juster  to  the  public  if  we  compelled  the  registration, 
not  of  advances  made  on  limited  liability,  but  of  amounts 
withdrawn  in  consequence  of  unlimited  liability. 

The  principal  recommendation  of  the  Bill  I  take  to  be 
the  additional  stability  it  will  give  to  the  presidency  town 
firms.  But  some  minor  advantages  connected  with  it  may  be 
mentioned.  One  of  these  relates  to  all  European  adventure 
in  India.  The  notorious  difficulty  of  such  undertakings  is 
the  difficulty  of  agency.  It  is  said  that  plenty  of  energetic 
men  come  out,  but  I  am  told  that  they  do  not   make  good 

Q 


226  SPEECHES   OF   SIR   HENRY   MAINE 

servants.     Ample  wages  and  large  stipends  are  not  enough  ;. 
the  stimulus  of  ownership  and  direct  interest  is  wanted.     If, 
then,  such  a  person  were  turned  into  a  master  through  this 
Bill,  if  he  became,  to  use  the  French  phrase,  the  gcrant  of  a 
commanditarian  partnership,  it  is  possible  that  his  relation  to 
his  employers  would  be  more  satisfactory,  and,  at  all  events, 
his  motives   to   good   faith   and   exertion  would    be    greatly 
increased.     There  is  also  a  distinct  advantage  in  legalising  a 
second  form  of  limited  liability.     It  may  have  been  observed 
that  the   real   secret   of  the  enormous   expansion  of  limited 
undertakings    in    England    is    that   they  have   attracted  the 
savings    of    the    non-commercial     and    professional    classes. 
Every  lawyer  and  every  man   of  business  knows  that  those 
classes  were  formerly  tied  down  to  Government  securities  and 
land.     But  now  the  capital  they  save  is  largely  embarked  on 
limited  liability,  and  is  thus  reproductively  employed.    There 
is,  however,  this  moral  drawback  on  the  change — that  investors 
can  only  now   procure   a   security   which  is  of  a  marketable 
value,  and  which   fluctuates  within  much  wider  limits  than 
Consols  or  Government  paper.     It  may  therefore  be  that  some 
persons  are  tempted  to  engage  in  speculation  who  would  not 
otherwise  have  indulged  in  it,  and  who  are  not  well  fitted  for 
it.      I  myself  do  not  believe  that   any  state   of  the   law  pro- 
duced, or  that  any  change  in  the  law  will  change  the  spirit  of 
speculation  which  lately  prevailed  in  this   country,  and  par- 
ticularly on  the  other  side  of  it.    But  I  do  think  that,  to  some 
limited  extent,  it  was  stimulated  and  aggravated  by  the  fact 
that   no   Native  who  invested   on   limited  liability  out  of  his 
hoard,  nor  servant  of  Government  out  of  his  savings,  could 
obtain    any  securities  which   had    not    a    highly  speculative 
value.      It  is  therefore  some  recommendation  of  this  Bill  that 
interests  created  under  it  will  not  generally  be  saleable.    Even 
supposing    that    the    alienation   of  such  an    interest    should 
become  abstractedly  legal  in   India,  the  contract  will  in  fact 
stipulate  that  it  shall  not  be  sold  without  the  consent  of  the 
firm   to  which  the  advance  is  made  ;  and  thus  the  Bill  may 
perhaps   redress  the  balance   between  two  forms  of  limited 
liability,  which  appears  to'me  to  have  inclined  too  much  in 
one  direction. 


OVER-LEGISLATION  22/ 

O  VER-LEGISLA  TION 

December  14,  1866. 

Much  annoyance  and  some  difficulty  were  caused  to  Mr.  Maine, 
both  before  and  after  leaving  India,  by  the  ignorant  impatience  of 
legislation  displayed  by  the  Indian  press,'  and  by  certain  members  of 
the  covenanted  Civil  Service.  This  impatience  led  to  charges  of 
precipitate  and  excessive  legislation  on  the  part  of  the  Governor 
General's  Council,  and  in  1866  Mr.  Maine  felt  it  necessary  to  reply 
to  these  charges.  In  moving  for  leave  to  introduce  Bills  to  extend 
to  the  Straits'  Settlement  (then  part  of  British  India)  the  Indian 
Penal  Code  and  the  Indian  Succession  Act,  INIr.  Maine  said  that 

very  little  of  Indian  legislation  had  been  extended  to  the 
Straits,  and  none  of  the  greater  enactments.  It  was  not  to  be 
denied  that  there  had  been,  for  long,  much  repugnance  in  the 
Straits'  Settlement  to  its  being  brought  under  Indian  law.  How 
far  the  feeling  was  shared  by  the  general  community,  he  could 
not  say  ;  but  if  it  was  so  shared,  he  should  be  disposed  to  attri- 
bute it  to  that  impression  of  a  diversity  of  interests  which  had 
caused  the  separation  of  the  Settlement  from  the  rest  of  the 
Indian  Empire.  At  all  events,  the  judges  and  the  legal  profes-  ^7  r 
sion  were  unquestionably  opposed  to  the  extension  of  Indian 
legislation  to  the  Settlement,  and  the  Local  Government 
constantly  protested  against  its  inclusion.  Thus  it  resulted 
that,  in  the  former  Legislative  Council,  the  Straits  were  as  a 
matter  of  course  exempted  from  the  operation  of  Indian 
statutes.  More  recently  there  appeared  to  have  been  a>  iir,  tt^ 
change  of  feeling,  and  complaints  had  been  received  that  the^ 
Straits  were  deprived  of  the  benefits  of  Indian  legislation.^ 
In  this  state  of  things,  a  section  was  added  to  recent  enact- 
ments, empowering  the  Governor  of  the  Straits'  Settlement 
to  extend  their  provisions  to  the  territory  under  his  jurisdiction, 
though,  owing  to  the  non-extension  of  the  Codes  of  Civil  and 
Criminal  Procedure,  the  judicial  and  administrative  system 
of  the  Straits  differed  so  widely  from  that  of  India,  that  the 
Council  could  not  take  upon  itself  to  describe  those  courts 
and  officers  by  whom  the  powers  given  were  to  be  exercised. 
Still  more    recently  the  negotiation  between  the   India  and 

'   The  Friend  of  India,  then  conducted  by  Dr.  (Jeo.  Smith,  was  an  honourable 
exception. 

Q2 


228  SPEECHES   OF   SIR    HENRY   MAINE 

Colonial  Offices  for  the  separation  of  the  Straits  from  India 
had  come  to  a  successful  issue,  and  an  Act  of  Parliament  had 
been  passed  during  the  last  session,  under  which  the  Queen 
was  enabled,  by  an  Order  in  Council,  to  declare  the  time  at 
which  the  Settlement  would  become  independent.^  No  sooner 
was  this  result  known,  than  we  received  from  the  Straits' 
Government  a  series  of  urgent  requests  that  the  Settlement 
should  not  be  allowed  to  separate  until  a  large  part  of  Indian 
legislation  had  been  extended  to  it.  In  particular,  it  was 
asked  that  the  Penal  Code  and  the  Succession  Act,  which 
was  the  first  part  of  the  Civil  Code,  should  be  made  applicable 
to  the  Straits.  It  seemed  to  him  likely  that  further  requests 
of  the  same  nature  would  be  received. 

The  Council jwou_ld^jprobably  agree  with  him  that  this 
change^  of  feeling  was  not  a  little  remarkable  ;  and,  as  tTiis 
was  the  first  meeting  of  the  Council,  he  would  propose  to  con- 
trast the  spirit  of  these  applications  with  that  of  some  criti- 
cisms contained  in  a  paper  which  had  possibly  been  circulated, 
and  which  it  would  be  his  duty  to  notice  sooner  or  later. 
One  of  the  judges  of  the  High  Court  of  Madras,  with  whom 
he  had  not  the  advantage  of  personal  acquaintance,  but  who 
was  reputed  to  unite  the  best  characteristics  of  the  barrister 
and  civilian  elements  of  those  tribunals,  had  remarked  as 
follows  on  a  proposal  to  extend  certain  formalities  prescribed 
by  the  Succession  Act  to  the  execution  of  wills  by  Muham- 
madans  and  Hindus  : — 

'  In  conclusion,  I  have  to  express  the  great  reluctance  with  which 
I  furnish  an  opinion  favouring  further  legislation.  I  regard  the 
rapidity  ^yjth__which_legislation  is  now  proceeding  as  a  very  great 
evil.  Ifit_CQntinaes,-14a-ftot--tliink  that  ekher  judges  or  practitioners, 
andT  still  less  the  publicywilT  know  from  day  to  day  the  law  which 
governs  them.  Statutes,  unless  very  carefully  constructed,  do  not 
^afford  certainty,  but  doubt  ;  and  litigation  is  not  repressed,  but 
^aggravated,  by  every  fresh  enactment.' 

Now,  it  would  perhaps  be  sufficient  to  contrast  this  pas- 
sao-e  with  the  implied  criticism  of  the  judges  and  Government 
of  the  Straits'  Settlement.  It  was  not  unfair  to  say  that  the 
Settlement  wished  to  retain  nothing  of  India  except  Indian 
legislation  ;  but  a  further  reply  than  that  was  necessary.  If 
•  29  &  30  Vic.  c.  115. 


OVER-LEGISLATION  229 

Mr.  Holloway's  opinion  had  stood  by  itself,  Mr.  Maine  would 
probably  not  have  noticed  it,  for  the  truth  was  that  learned 
lawyers  were  the  natural  enemies  of  legislation,  which  impaired^ 
the  completeness  and  symmetry  of  their  knowledge.     But  the 
same  feeling  had  been  exhibited  in  other  quarters  ;  and  Mr. 
Maine  thought  he  could  not  too  soon  meet  the  charge  of  pre- 
cipitate and  excessive  legislation  on  the  part  of  that  Council. 
He  did  not   deny  that  when  the  annual    Statute-book  was 
looked  at    by  itself,  it    might  be  observed  with  surprise  or 
dismay  that  the  annual  production  of  laws  was  about  thirty. 
But  no  just  conclusion  could  be  reached  unless  there  were  a 
further  examination  as  to  the  classes  of  enactments  which  the 
book  comprised,  and  the  proportion  which  one  class  bore  to 
another.     Mr.  Maine  would  divide  the  Acts  of  the  Indian 
Legislature  into  four  classes — a  division  only  rough,  but  prac- 
tically sufficient.  — 
The  first  of  these  classes  was  one  of  serious  importance,  ~ ' 
and  it  was    probably  from  vague  associations    with  it    thaticc/a/ 
people    had  begun   to    speak  of  dangerous    over-legislation,  fyji^ 
This  class  consisted  of  enactments  affecting  the  civil  usages  J 
or  religious  opinions  of  the  people  of  the  country.     There 
could  hardly  be  any  censure  too  heavy  for  the  Council  if  it 
really  did  pass  such  measures  with  incaution  and  precipitancy. 
He  did  not  acquiesce  in  that  interpretation  which  had  been 
sometimes  put  on  the  proclamation  issued  by  the  Queen  on 
assuming  the  direct  Government  of  the  country,  and  which 
apparently  pledged    Her    Majesty    to    surrender    the    power 
which  was  the  sole  moral  justification  for  our  being  in  the 
country  at  all — power  to  improve  its  institutions — but  he  fully 
admitted  that  it  would  be  the  worst  policy  to  pass  measures 
of  this  class  without  the  maturest  consideration  and  the  most 
scrupulous  regard  for  the  feelings  of  the  people.     But  how 
did  the  facts  really  stand  ?     Since  Mr.  Maine  had  been  in 
India — that  was  four  years — he    could  only  remember    two 
measures  which  could  distantly  be  described  as  disturbing  or 
affecting  Native  custom  or  Native  religious  opinion.     One  was    Jfi^  ' 
the  Natu-e  Christian   Marriage^  Dissolution  Act    passed  last 
session,  the  other  was  the  Registration  Act.     The  latter  was 
much  more  serious  than  the  former,  inasmuch  as  it  added  a 


230  SPEECHES   OF   SIR    HENRY   MAINE 

formality  to  the  majority  of  civil  transactions,  penetrating 
into  every  corner  of  Native  life.  He  was  not  going  to  defend 
those  measures,  but  he  wished  to  call  attention  to  the  duration 
of  the  discussion  on  them.  Proposals  for  registration  had 
been  before  the  Government  for  thirty-six  years,  and  the  Bill 
itself  for  six  and  a  half  years  before  the  Council.  Again,  the 
principle  of  the  Converts'  Dissolution  of  Marriage  Act  had 
probably  been  discussed  ever  since  there  had  been  missionaries 
'''  in  India.  But  the  proposal  ultimately  adopted  was  under 
(active  discussion  for  thirty-two  years,  and  the  Bill  itself  was 
Wo  years  under  the  consideration  of  the  Legislature.  He 
•would  mention  one  other  enactment  which  might  possibly  be 
supposed  to  come  under  the  class  as  affecting  a  portion  of  the 
community  not  numerically  large,  but  of  great  importance. 
This  was  the  Act  erroneously  called  the  Act  for  abolishing 
Grand  Juries,  but  more  properly  entitled  an  Act  for  enabling 
Europeans  to  be  tried  elsewhere  than  in  the  Presidency 
^. Towns.  It  was  founded  on  a  report  of  the  Indian  Law  Com- 
missioners, dated  in  1853,  and  the  Bill  passed  in  1865,  so 
that  the  subject  had  been  twelve  years  under  discussion. 
In  admitting,  therefore,  that  the  Council  would  be  censur- 
able if  it  passed  enactments  of  this  class  without  the  fullest 
deliberation,  he  was  bound  to  state  what  the  facts  were,  that 
the  class  consisted  of  only  three  measures  discussed  during 
an  average  period  of  four-and-twenty  years. 

The  second  of  the  classes  into  which  he  divided  Indian 
legislation  was  intended  to  bring  up  law  which  was  common 
to  England  and  India  to  the  pitch  of  improvement  which  it 
had  reached  at  home.  He  could  remember  but  four  enact- 
ments of  the  sort  passed  of  late  years.  The  two^rustee_A£tj^^ 
recently  passed  at  Simla,  the  Mercantile^  Law  Amendment 
Act,'^  and  the  Indian  Companies  Act.^  Nobody,  he  supposed, 
would  charge  the  British  Parliament  with  precipitate  legis- 
lation, and  certainly  the  immediate  framers  of  the  two  Acts 
first  mentioned — Lord  St.  Leonards  and  Lord  Justice  Turner 
■ — could  not  be  accused  of  feverish  jxal^  for  j;;eforrn.  The 
truth  was  that  the  Indian  Legislature  had,  in  enactments  of 

'  Acts    XXVII.    and   XXVIII.    of  -  Act  V.  of  1866. 

1866.  '  Act  X.  of  1866. 


OVER-LEGISLATION  23 1 

this  class,  lagged  far  behind  the  English  Parliament,  and 
■one  measure  in  particular — the  Indian  Companies  y\ct — had 
barely  been  passed  in  time,  as  recent  occurrences  in  l^ombay 
had  abundantly  proved. 

Air.  Maine  now  approached  the  third  class — of  an  im- 
portance which  it  was  hardly  possible  to  over-estimate — the 
Codes.  Three  of  them  were  passed  by  the  former  Legislative 
Council — the  Penal  Code,  and  the  Codes  of  Civil  and  Criminal 
Procedure.  This  Council  had  as  yet  passed  but  one  single 
chapter  of  the  fourth  code — the  Succession  Act — but  he 
might  mention  that  one  enactment — the  Partnership  Amend- 
ment Act— was  in  reality  part  of  the  Civil  Code.  Mr.  Maine 
had  stated  at  the  time  that  the  law  was  in  anticipation  of  the 
code,  and  this  was  proved,  for  the  Act  was  embodied  in  the 
draft  code  of  the  Law  of  Contracts  which  the  Indian  Law 
Commission  had  just  sent  out.  The  responsibility  for  the 
codes  was  shared  between  this  Council  and  the  Indian  Law 
■Commissioners.  The  Commissioners  sent  out  the  first  draft, 
and,  in  the  case  at  all  events  of  the  Indian  Civil  Code,  it  had 
been  accepted  by  the  Council  with  but  slight  alteration.  He 
wished,  however,  not  to  put-  off  the  responsibility  on  other 
persons,  but  to  meet  the  objection  that  the  codes  added  to 
the  law  and  rendered  it  unintelligible  to  the  people.  Mr. 
Maine  ventured  to  lay  down  exactly  the  opposite  proposition  ; 
thej:odes  enormously  reduced  the  bulk  of  the  lavv,  and  ren- 
dered  it  for  the  first  time  intelligible  to  the  people.  He  would 
not  enter  into  the  general  question  of  codification.  His  own 
■observation  showed  him  that  the  vulgar  prejudice  against 
codification  had  greatly  decayed  in  England,  and  had  given 
way  to  deep  regret  that  the  characteristics  of  English  law 
were  such  as  to  render  it,  if  not  impossible,  at  all  events 
enormously  difficult,  to  reduce  it  to  a  code.  But  the  question 
for  the  Council  was,  how  far  had  the  Indian  codes  rendered 
law  unintelligible  or  bulky  in  India?  Mr.  Maine  did  not 
•himself  recollect  the  state  of  the  law  in  India  before  the  three? 
codes  which  were  already  law.  But  there  were  gentlemen( 
in  the  Council  who  perhaps  had  administered  that  law  either^ 
as  judges  or  as  magistrates.  He  should  be  surprised  if  they  did 
not  bear  out  his  impression,  which  of  course  rested  on  hearsay, 


232  SPEECHES   OF   SIR   HENRY   MAINE 

that  nothing  could  exceed  its  uncertainty,  confusion,  and 
intricacy.  It  was  true  that  the  codes  of  the  Non-Regulation 
Provinces,  which  were  descended  from  the  Panjab  code,  were 
greatly  simpler.  But  being  clothed  in  half-popular  language, 
they  had  a  natural  tendency  to  become  overlaid  with  glosses 
and  interpretations.  When  the  last  of  them,  the  civil  pro- 
cedure of  the  Panjab,  was  superseded  the  other  day  by  the 
code,  it  was  not  too  much  to  say  that  it  consisted  of  a  moun- 
tain of  circulars.  But  now,  looking  to  the  Civil  Code,  with 
which  alone  the  Council  was  concerned,  would  it,  by  passing 
the  chapters  of  the  code  at  the  rate  of  about  one  in  two  years, 
lay  itself  open  to  the  imputation  of  increasing  the  massive- 
'ness  or  the  unintelligibility  of  the  law  ?  What  was  the  civil 
'law  of  India  at  this  moment,  apart  from  the  religious  law, 
which  included  the  law  of  intestate  succession,  and  which  the 
Code  did  not  propose  to  touch,  and  apart  from  the  law  of 
land,  which  stood  on  a  footing  of  its  own  ?  It  consisted,  in 
the  first  place,  of  Native  usages,  which  differed  not  only  from 
province  to  province,  but  from  district  to  district  and  from 
family  to  family.  It  consisted,  further,  of  the  writings  of 
•.Hindu  and  Muhammadan  jurists,  so  vague  from  the  confu- 
(jsion  of  ethical  with  legal  rules,  that  it  was  hardly  possible 
to  extract  a  trustworthy  conclusion,  or,  what  was  worse,  that 
it  was  possible  to  extract  two  conflicting  conclusions,  each 
equally  trustworthy  with  the  other.  There  were,  further,  the 
old  Regulations,  which  were  certainly  not  remarkable  for  pre- 
cision of  language,  and  there  were,  further,  a  few  principles — 
few,  that  was  to  say,  as  compared  with  the  whole  mass  of 
legal  principles — decided  by  the  late  Supreme  and  Sadr  Courts, 
and  by  the  Privy  Council.  There  were  great  chapters  of  law 
on  which,  in  India,  there  was  no  indigenous  system  of  rules  of 
any  sort.  Contract,  for  example,  was  utterly  unregulated,, 
except  by  some  small  portion  of  Muhammadan  jurisprudence. 
Now,  was  that  state  of  things  satisfactory  ?  No  doubt, 
the  answer  of  some  persons  would  be  that  if  the  people  were 
contented,  it  was  no  business  of  the  Government  or  the 
Council.  But  the  truth  was  there  was  an  influence  in  India 
which  tended  to  simplify  this  confusion.  That  was  the  in- 
fluence of  English  law,  not  as  modified  by  the  codes,  but  of 


OVER-LEGISLATION  23$ 

English  law  pure  and  simple.  It  was  all  very  well  in  theory 
to  say  that  an  Indian  Mufassal  judge  decided  by  Native 
usage,  'equity  and  good  conscience;'  but  in  practice,  if  he 
did  anything  of  the  kind,  his  reputation  would  suffer.  The 
court  which  revised  his  decision  would  insist  upon  his  apply- 
ing a  stricter  rule  than  could  be  got  out  of  equity  and  good 
conscience,  and  the  rule  applied  would  be  one  mediately  or 
immediately  derived  from  English  law.  Now  was  that  a 
process  which  an  English  Government,  conscious  of  its  own 
responsibilities,  could  allow  to  go  on  without  check  ?  Mr. 
Maine  was  not  likely  to  say  any  evil  of  English  law  ;  but  it) 
was  certainly  one  of  the  most  difficult  systems  of  law  in  the) 
world,  and  its  compass  was  enormous.  Its  corpus  juris  was  a^  O.Aj. 
law-library  of  a  thousand  volumes.  How  many  law-libraries 
were  there  in  India  }  Probably  t\venty^  at  the  outside.  But  -<^/^ 
could  there  be  conceived  a  more  intolerable  hardship  than  J" 

that  150  millions  of  people  should  have  their  civil  rights 
dependent  on  a  system  contained  in  records  which  were  in- 
accessible to  them,  which  they  could  not  translate^andjwhjch, 
if  they  could  translate,  they  could  not  understand?  Some 
persons  answered  that  this  was  immaterial  so  long  as  there 
was  a  learned  profession  competent  to  expound  the  law,  and 
urged  that  in  England  no  one  except  a  professional  man 
understood  the  law,  or  would  act  without  the  advice  of  legal 
practitioners.  That  was  true,  but  it  was  a  peculiarity  of 
England,  and  not  an  honourable  one,  and  not  one  which 
Englishmen  should  carry  all  over  the  world  with  them.  At 
the  same  time,  in  England  there  was  a  legal  profession  spread 
over  the  country,  from  whom  a  trustworthy  opinion  could 
always  be  obtained.  But  how  many  persons  were  there  in 
India  who,  considering  the  invasion  of  the  country  by  Eng- 
lish law,  could  give  such  an  opinion  .-'  Probably  outside  the 
presidency  towns  they  could  be  counted  on  one's  fingers. 

It  seemed  to  him,  therefore,  a  matter  of  simple  duty  to 
the  people  that  the  labours  of  the  Indian  Law  Commissioners 
should  proceed.  The  only  possible  remedy  for  the  state  of 
things  he  had  described  was  a  code  which,  without  going 
overmuch  into  detail,  should  set  forth  fundamental  principles) 
with  as  much  simplicity  as  was    compatible  v/ith  accuracy.-^ 


234  SPEECHES   OF   SIR    HENRY   MAINE 

Such  a  code  would  perfectly  well  fit  in  with  Native  usage 
when  it  was  wholesome  ;  nor  was  there  any  fear  that  Eng- 
lish law,  characterised  as  it  was  by  good  sense  and  logical 
coherence,  would  fail  to  supply  the  greatest  part  of  the 
material. 

The  fourth  and  last  class  was  the  most  numerous  of  all. 
Probably  it  was  by  not  noticing  the  proportion  which  this 
■class  bore  to    the  rest    of  the  enactments    that    people  had 
■obtained  the  impression  of  excessive _]egislatipn.      It    would 
have  to  be  remembered  that  this  Council  was  not  simply  the 
Imperial    Legislature,  but  the  local    legislature  for    all  pro- 
vinces   which    had   not    got    councils    of    their    own.     From 
Lower^Bengal,  Madras,  and  Bombay,  there  were  hardly  any 
applications  for  legislation  at  all.     The  few  Bills  that  came 
from  those  provinces  were  necessitated  by  a  technical  diffi- 
culty, namely,  that  by  the  letters  patent  of  the  High  Courts 
the  local  Councils  were  prohibited  from  interfering  with  the 
jurisdiction    of  those    tribunals.     But    from  those    provinces 
(which  had  no  legislatures  of  their  own  there  was  a  constant 
stream  of  applications  for  legislative  enactments.     Now,  what 
Was  the  character  of  those  enactments  ?     They  were  merely 
local    Bills.     They    did    not    create    rights    or    obligations. 
They  merely  affected  the  machinery  by  which  rights  were 
protected  or  declared.     They  simply  carried  out  small  judicial 
or    administrative    improvements.     The    fact    was    that^  the 
countryjwaspassing  from  an  administrative  to  a  legal  con- 
dition^  from  a  state  in  whiclL^qd  government  depended  on 
the  energy  of  individuals,  into  a  state  in  which  it  depen^led 
on  adherence  to   well-considered  rules.     There   were    some, 
Mr.  Maine  knew,  who  looked  on  the  process  as  wholly  evil. 
The  farther  you  got  from  Calcutta,  the  more  you  heard  the 
complaint  that  law  was  paralysing  administration.      All  that 
) could  be  said  in  reply  was  that  the  change  was  inevitable. 
I  Energetic    administration  in  the    ruder    provinces    produced 
^wealth,  security,  and  comfort,  and  the  infallible  result  was  a 
\\vish  to  have  rights  of  enjo}'ing  property  regulated  by  fixed 
law,  and  a  disinclination   to  allow  those  rights  to  vary  with 
the  varying  theories  of  successive  administrators.     Mr.  Maine 
thought  he  understood  what  was  meant  by  the  assertion  that 


OVER-LEGISLATION  235 

Iaw_paral^sed_adjnmistration.  But  certainly  the  last  person 
to  object  to  the  fruits  of  the  change  should  be  a  judge  of  a 
High  Court,  because  the  moving  cause  was  undoubtedly  a 
growing  taste  for  legality,  fostered,  probably,  by  the  strength- 
ening of  the  higher  tribunals,  and  particularly  of  the  High 
Courts.  There  were  examples  of  the  change  and  of  the 
demand  which  it  had  produced  in  the  legislation  submitted 
to  the  Council.  There  was  an  example  in  the  Hon. 
Mr.  Brandreth's  Bill  for  establishing  municipal  committees, 
in  the  Panjab.  There  was  a  practice  existing  which  the 
local  Government  held  to  be  healthy,  useful,  and  convenient.' 
Suddenly  some  ingenious  person  discovered  that  it  rcsted(^  ^fX, 
on  no  legal  foundation.  Thereupon  the  Local  Government, 
came  to  the  Council  for  a  Bill  to  legalise  it.  Or  take  the 
converse  ca.se,  in  the  Bill  for  the  suppression  of  gambling, 
of  which  the  Hon.  Mr.  Riddell  was  in  charge.  The  Local 
Government  had  had  its  attention  drawn  to  the  prevalence 
of  public  gambling  in  large  cities  as  productive  of  all  evil.  "^ 
Now,  did  anybody  suppose  that,  thirty  years  ago,  if  a  person 
in  the  position  of  the  Lieutenant  Governor  of  the  North- 
western Provinces,  or  the  Chief  Commissioner  of  British 
Burma,  had  made  up  his  mind  that  public  gambling  was 
productive  of  crime,  he  would  have  come  for  a  Bill  to  this 
Council .''  Why,  he  would  have  told  his  police  to  put  it  down, 
or  issued  his  orders  to  the  district  officer.  But  nowadays, 
quite  reasonably  and  properly,  he  came  to  us  for  a  Bill. 
These  Bills,  providing  for  small  judicial  or  administrative 
changes,  were  and  must  be  constantly  required.  When  such 
a  measure  was  strongly  recommended  by  the  Local  Govern- 
ment, Mr.  Maine  held  that  this  Council  would  be  heavily 
responsible  if  it  declined  legislation.  At  all  events,  the  exe- 
cutive Government  would  be  censurable  if  it  did  not  sub- 
mit to  the  Council  a  Bill  to  legalise  the  change.  It  would  be' 
the  merest  pedantry  to  stereotype  legislation  of  this  sort.  In 
a  country  in  which  those  who  knew  most  of  a  people  knew' 
little  of  them,  our  .system  of  government  must  necessarily  be 
tentative,  and  small  administrative  improvements  must  be 
from  time  to  time  required  and  conceded.  If  it  were  true 
that  there    was  too  superstitious    a  regard   for    legality,  the 


236  SPEECHES   OF   SIR    HENRY   MAINE 

proper  remed}'  was  an  active  legislation.  For  these  reasons 
Mr.  Maine  considered  that  this  cla.ss  of  local  Bills  could  never 
fall  off  very  much  in  number  ;  and  it  was  further  inevitable 
that  they  should  constantly  take  the  form  of  Bills  amending 
y\cts,  not  because  the  hand  or  mind  of  the  legislator  was  un- 
certain, but  because  the  material  of  policy  upon  which  he 
worked  was  from  its  very  nature  shifting.  Mr.  Maine  hoped  that 
every  Bill  submitted  to  the  Council  at  these  sittings  would 
be  found  not  only  justifiable  but  incapable  of  postponement. 
He  himself  would  be  personally  glad  if  the  spell  of  an  annual 
sitting,  except  for  financial  measures,  could  be  broken  ;  but 
he  trusted  it  would  be  seen  that  no  one  of  the  measures  now 
proposed  for  consideration  could  have  been  put  aside  or 
delayed  without  injury  to  good  government. 

As  regarded  the  particular  Bills  before  the  Council,  the 
first  of  them  merely  proposed  to  extend  the  Penal  Code  to 
the  Straits.  A  short  Bill,  separately  before  the  Council,  pro- 
vided for  certain  consequences  arising  from  the  definition 
of  the  word  '  offence '  in  the  Penal  Code.  That  Bill  had 
been  embodied  in  the  second  section  of  this  measure.  Some 
papers  had  come  in  which  suggested  still  further  change  in 
the  same  direction,  but  he  trusted  the  discussion  on  these 
points  would  be  taken  on  the  separate  Bill,  and  not  on  the 
measure  now  submitted. 

As  regarded  the  Bill  to  extend  the  Succession  Act  to  the 
Straits'  Settlement,  it  was  another  of  the  class  of  Bills  which 
had  been  asked  for  by  the  Local  Government.  The  Bill  pro- 
posed to  extend  the  Act,  but  with  two  important  modifica- 
tions. Here  in  India  the  operation  of  the  Act  was  excluded 
in  the  case  of  the  Hindus,  Muhammadans,  and  Buddhists  ;  the 
result  was  that  it  affected  a  comparatively  small  class  of  the 
community,  and  its  great  importance  was  the  indirect  effect 
that  it  would  be  sure  to  have  on  the  Native  law  of  succession. 
The  Local  Government  wished  the  Act  to  be  made  the  lex 
loci,  without  distinction  of  race  or  creed  ;  but  the  Straits' 
Settlement  was  a  community  of  an  omnigenous  character, 
and  if  the  Succession  Act  was  to  be  applied,  provision  would 
have  to  be  made  for  two  matters.  First,  as  in  the  case  of 
many    primitive    races,  a    part    of  the    population    practised 


OVER-LEGISLATION  237 

adoption.  The  Bill  accordinc^ly  provided  that,  for  the  pur-  / 
poses  of  intestate  and  testamentary  succession,  an  adopted 
son  should  be  considered  a  legitimate  child  of  his  adoptixe 
and  not  of  his  natural  father.  The  provision  was  so  far  in 
accordance  with  the  Hindu  law,  but  omitted  the  inequitable 
rule  that  in  case  of  a  son  being  born  to  the  adoptive  father 
subsequently  to  the  adoption,  the  share  of  the  adopted  son 
should  be  only  one-fourth  of  that  of  the  natural-born  son. 
Secondl}-,  there  were  many  persons  in  the  Straits  whose  z, 
marriage  law  permitted  a  plurality  of  wives.  It  would  be 
absurd  to  apply  to  such  persons  the  rule  that  marriage  should 
operate  as  a  revocation  of  a  will.  The  Bill  accordingly  pro- 
vided that,  in  the  case  of  a  polygamist,  his  will  should  not  be 
revoked  merely  by  his  marriage.  Provision  was  also  made 
for  the  case  of  his  dying  intestate  and  leaving  several  widows. 

The  same  subject  is  discussed  in  the  following  minute,  dated 
October  i,  1868  :— 

The  accompanying  paper,  '  showing  in  each  case  the  au- 
thority at  whose  suggestion  the  Acts  of  the  Governor  General 
in  Council,  from  No.  I.  of  1865  to  No.  XXXVII.  of  1867,  were 
passed,'  has  been  already  seen  by  the  Viceroy  and  my 
colleagues.  I  have  to  admit  that  it  was  originally  prepared 
to  furnish  materials  for  an  answer  to  statements  which  I  re- 
garded as  conveying  some  degree  of  censure  on  myself  It 
seemed  to  me  that  many  persons,  to  whose  opinion  great 
respect  is  due,  were  getting  more  and  more  to  believe  or 
suspect  that  legislation  in  India  was  unnecessarily  profuse, 
and  that  its  abundance  was  attributable  either  to  morbid 
activit}'  in  the  Law  Member  of  Council,  or  to  something  faulty 
in  the  constitution  of  the  Legislature.  So  long  as  such  state- 
ments were  couched  in  general  terms,  it  appeared  to  mc 
difficult  or  impossible  to  meet  them  satisfactorily,  since  it  is 
undoubtedly  true  that  legislation  in  India  has  not  slackened, 
as  it  was  expected  to  do,  and  even  shows  a  tendency  to  in- 
crease. Something,  therefore,  like  a  brief  historical  analysis 
of  recent  legislation  appeared  to  be  required,  and  this  the 
paper  gives,  though  of  course  within  scanty  limits.  The  fact, 
however,  that  it  was  compiled  for  a  reason  in  some  degree 
personal  will  explain  why  the  inquiry,  of  which  it  states  the 


238  SPEECHES   OF   SIR   HENRY   MAINE 

results,  was  not  carried  back  beyond  the  beginning  of  1865. 
The  documents  relating  to  proposals  for  legislation  which  are 
in  the  Legislative  Department  are  exceedingly  numerous  and 
voluminous,  and  the  labour  of  analysing  them  proportionately 
heavy.  I  did  not  think  myself  justified  in  directing  the 
inquiry  to  be  continued  through  any  greater  number  of 
past  years,  but  there  is  no  reason  to  suppose  that,  if  it  had 
been  so  continued,  it  would  have  suggested  any  different 
inferences. 

It  may  be  necessary  to  explain  that  the  communication 
mentioned  in  the  third  column  is  always  the  one  in  which  the 
request  for  legislation  was  first  distinctly  made  by  the  Local 
Government  or  authority  indicated.  But  in  several  cases  it 
was  preceded  by  correspondence  more  or  less  leading  up  ta 
legislation,  and  in  many,  indeed  in  most,  cases  it  was  followed 
by  communications  reiterating  the  demand  for  a  legislative 
measure,  often  in  language  of  extreme  urgency. 

I  proceed  to  state  the  conclusions  to  which  this  paper 
seems  to  me  to  point.  If  the  members  of  Government  do  not 
agree  in  those  conclusions,  I  shall  certainly  be  surprised,  but 
I  can  hardly  sa)^  I  shall  be  disappointed.  Nothing  would 
give  me  sincerer  gratification  than  any  practical  suggestion 
of  an  expedient  forreduclng  tEe~quantity  of  our  legislation 
and  sensibly  diminishing  the  annual  addition  to  the  Indian 
statute-book. 

,  The  first  conclusion  which  I  draw  is  that  next  to  no  legis- 
^lation  originates  with  the  Government  of  India.  The  only 
exceptions  to  complete  inaction  in  this  respect  which  are 
worth  mentioning  occur  in  the  case  of  Taxing  Acts — though, 
as  there  is  often  much  communication  with  the  local  Govern- 
ments on  the  subject  of  these  Acts,  the  exception  is  only 
partial — and  in  that  of  a  few  Acts  adapting  portions  of 
English  statute  law  to  India.  Former  Indian  legislatures  in- 
troduced into  India  certain  modern  English  statutes  limiting 
their  operation  to  '  cases  governed  by  English  law.'  The 
most  recent  English  amendments  of  these  statutes  were> 
however,  not  followed  in  this  country  until  they  were  em- 
bodied in  Indian  Acts  by  my  predecessor,  Mr.  Ritchie,  and 
myself,  in  accordance  with  the  general  wish  of  the  bench  and 
bar  of  the  High  Courts.     Examples  of  this  sort  of  legislation 


OVER-LF.C.ISLATIOX  239- 

are  Acts  XXVII.  and  XXVIII.  of  1866,  which  only  apply  to 
'  cases  governed  by  English  law.' 

The  second,  and  much  the  most  important,  inference  ^, 
which  the  paper  appears  to  mc  to  suggest  is,  that  the 
great  bulk  of  the  legislation  of  the  Supreme  Council  is ) 
attributable  to  its  being  the  local  legislature  of  manys 
Indian  provinces.  At  the  present  moment,  the  Council 
of  the  Governor  General  for  making  Laws  and  Regulations  is 
the  sole  local  legislature  for  the  North- Western  Provinces,  for 
the  Panjab,  for  Oudh,  for  the  Central  Provinces,  for  British 
Burma,  for  the  petty  province  of  Coorg,  and  for  many  small 
patches  of  territory  which  are  scattered  among  the  Native 
States.  Moreover,  it  necessaril}-  divides  the  legislation  of 
Bengal  Proper,  Madras,  and  Bomba}'  with  the  local  Councils  of 
those  provinces.  For,  under  the  provisions  of  the  High  Courts 
Act  of  1861,^  it  is  only  the  Supreme  Legislature  which  can 
alter  or  abridge  the  jurisdiction  of  the  High  Courts,  and,  as  this 
jurisdiction  is  very  wide  and  far-reaching,  the  effect  is  to  throw 
on  the  Governor  General's  Council  no  small  amount  of  lep-is- 
lation  which  would  naturally  fall  on  the  local  legislatures. 
Occasionally,  too,  the  convenience  of  having  but  one  law  for 
two  provinces,  of  which  one  has  a  Council  and  the  other  has 
none,  induces  the  Supreme  Government  to  legislate  for  both, 
generally  at  the  request  of  both  their  Governments. 

Now,  these  provinces  for  which  the  Supreme  Council  is     .^ 
the  joint  or  sole    legislature    exhibit    very   wide    diversities. 
Some  of  these  differences  are  owing  to  distinctions  of  race.  ^ 
others  to  differences  of  land-law,  others  to  the  unequal  spread  e 
of  education.     Not  only  are  the  original  diversities  between 
the    various    populations  of   India  believed  nowadays  to  be 
much  greater  than  they  were  once  thought  to  be,  but  it  may 
be  questioned  whether,  for  the  present  at  all  events,  they  are 
not  rather  increasing  than  diminishing  under  the  influence  of 
British  government.     That    influence    has  no  doubt  thrown 
all  India  more  or  less  into  a  state  of  ferment  and  progress,  but? 
the  rate  of   progress    is    very   unequal  and  irregular.      It   isS 
growing  more  and  more  difficult  to  bring  the  population  of 
two  or  more  provinces  under  any  one  law  which  goes  closely 
home  to  their  daily  life  and  habits. 

'  24  &  25  Vic.  c.  104. 


240  SPEECHES   OF   SIR   HENRY   MAINE 

Not  only,  then,  are  we  the  local  legislature  of  a  great 
many  provinces,  in  the  sense  of  being  the  only  authority 
which  can  legislate  for  thenn  on  all  or  certain  subjects,  but  the 
condition  of  India  is  more  and  more  forcing  us  to  act  as  if 
we  were  a  local  legislature  of  which  the  powers  do  not  extend 
beyond  the  province  for  which  we  are  legislating.  The  real 
proof,  therefoj^,  of  our  over-legislation  would  consist,  not  in 
showing  that  we  pass  between  thirty  and  forty  Acts  ijn^yery 
year,  but  in  demonstrating  that  we  apply  too  jriany  nejw  laws 
to^ach  or  to  some  one  of  the  provinces  subject  to  us.  Now, 
I  will  take  the  most  important  of  the  territories  for  which 
we  are  exclusively  the  legislature — the  North-Western  Pro- 
vinces— and  I  will  take  the  year  in  which,  judging  from  the 
paper,  there  has  been  most  North-Western  legislation — 
the  year  1867.  The  amount  does  not  seem  to  have  been 
very  great  or  serious.  I  find  that  in  1867,  if  Taxing  Acts 
be  excluded,  the  North-West  was  affected  in  common  with 
all  or  other  parts  of  India  by  an  Act  repressive  of  Public 
Gambling  (No.  III.);  by  an  Act  for  the  Registration  of 
Printing  Presses  (No.  XXV.);  and  by  five  Acts  (IV.,  VII., 
VIII.,  X.  and  XXXIII.)  having  the  most  insignificant  tech- 
nical objects.  I  find  that  it  was  exclusively  affected  by  an  Act 
(I.)  empowering  its  Government  to  levy  certain  tolls  on  the 
Ganges  ;  by  an  Act  (XXII.)  for  the  Regulation  of  Native 
Inns  ;  by  an  Act  (XVIII.)  giving  a  legal  constitution  to  the 
courts  already  established  in  a  single  district  ;  and  by  an 
Act  (XXVIII.)  confirming  the  sentences  of  certain  petty 
criminal  courts  already  existing.  I  find  further  that,  in  the 
same  year,  1867,  the  British  Parliament  passed  85  Public 
General  Acts  applicable  to  England  and  Wales,  of  which  one 
was  the  Representation  of  the  People  Act.  The  number  of 
Local  and  Personal  Acts  passed  in  the  same  year  was  188. 
All  this  legislation,  too,  came,  it  must  be  remembered,  on  the 
(back  of  a  vast  mass  of  statute  law,  compared  with  which  all 
)the  written  law  of  all  India  is  the  merest  trifle.  Now,  the 
/population  of  England  and  Wales  is  rather  over  20  millions, 
'  that  of  the  North-Western  Provinces  is  supposed  to  be  above 
30  millions.  No  trustworthy  comparison  can  be  instituted 
between  the  two  countries  ;  but,  regard  being  had  to  their 


cf. 


OVKR-LEGISLATION  24 1 

condition  thirty  years  ago,  it  may  be  doubted  whether,  in 
respect  of  opinions,  ideas,  habits  and  wants,  there  has  not 
been  more  change  during  thirty  years  in  the  North-West 
than  in  England  and  Wales. 

A  third  inference  which  the  paper  suggests  is  that  our 
legislation  scarcely  ever  interferes,  even  in  the  minutest 
degree,  with  private  rights,  whether  derived  from  usage  or 
from  express  law.  It  has  been  said  by  a  high  authority  that  ^^^ 
the  Indian  Legislature  should  confine  itself  to  the  amendment 
of  Adjective  Law,  leaving  Substantive  Law  to  the  Indian 
Law  Commissioners.  It  is  meant,  no  doubt,  that  the  Indian 
Legislature  should  only  occupy  itself,  propria  inotu,  with 
improvements  in  police,  in  administration,  in  the  mechanism 
and  procedure  of  courts  of  justice.  This  proposition  appears 
to  me  a  ver)-  reasonable  one  in  the  main,  but  it  is  nearly  an 
exact  description  of  the  character  of  our  legislation.  We  do 
not  meddle  with  private  rights  ;  we  only  create  official  duties. 
No  doubt  ActX.  of  1865  '  and  Act  XV.  of  1866^0  consider- 
ably modify  private  rights,  but  the  first  is  a  chapter  and  the 
last  a  section  of  the  Civil  Code  framed  in  England  by  the 
Law  Commissioners. 

The  paper  does  not,  of  course,  express  the  urgency  with 
which  the  measures  which   it   names   are   pressed  on  us  by 
their   originators — the   Local    Governments.     My  colleagues 
are,  I  believe,  aware  that   the   earnestness  with  which  these. 
Governments  demand  legislation,  as  absolutely  necessary  for? 
the  discharge  of  their  duties  to  the  people,  is  sometimes  veryJ 
remarkable.      I   am  very  far  indeed   from   believing  that,  as 
they  are   now  constituted,  they  think  the   Supreme  Council 
precipitate  in  legislation.      I  could  at  this  moment  name  halt 
a  dozen  instances  in  which  the  present  Lieutenant  Governors 
of  Bengal   and  the  North-West   deem   the  hesitation  of  the  OiAc^r-  c 
Government  of  India  in  recommending  particular  enactments 
to  the  Legislature  unnecessary  and  unjustifiable. 

While  it  does  not  seem   to  me  open  to  doubt  that   the 
Government  of   India    is    entirely   free   from    the    charge  of) 
initiating  legislation   in   too   great   abundance,  it  may  never-5 
theless  be  said  that  we  ought   to  oppose  a  firmer  resistance 

'  The  Indian  Succession  Act.  -  The  Partnership  Act. 

R 


242  SPEECHES   OF   SIR   IIENRV   MAINE 

to  the  demands  of  the  Local  Governments  and  other  authorities 
n  for  legislative  measures.  K^eems^desirable,  therefore,  that 
/  I  should  say  something  of  the  influences  which  prompt  these 
Governments,  and  which  constitute  the  causes  of  the  increase 
in  Indian  legislation.  I  must  premise  that  I  do  not  propose 
to  dwell  on  causes  of  great  generalit}'.  Most  people  would 
admit  that,  for  good  or  for  evil,  the  country  is  changing 
rapidly,  though  not  at  uniform  speed.  Opinion,  belief,  usage, 
and  taste  are  obviously  undergoing  more  or  less  modification 
everywhere.  The  standard  of  good  government  before  the 
minds  of  officials  is  constantly  shifting,  perhaps  it  is  rising. 
These  phenomena  are  doubtless  among  the  ultimate  causes 
of  legislation  ;  but,  unless  more  special  causes  are  assigned, 
the  explanation  will  never  be  satisfactory  to  many  minds. 
I  will  first  specify  a  cause  which  is  in  itself  of  a  merely 
^  formal  nature,  but  which  still  contributes  greatly  for  the  time 
^^/  to  the  necessity  for  legislation.  This  is  the  effect  of  the  Indian 
Councils  Act  of  1861  '  upon  the  system  which  existed  before 
that  date  in  the  non-regulation  provinces.  It  is  well  known 
that,  in  the  strict  sense  of  the  word,  the  Executive  Govern- 
ment legislated  for  those  provinces  up  to  1861.  The  orders, 
instructions,  circulars,  and  rules  for  the  guidance  of  officers 
which  it  constantly  issued  were,  to  a  great  extent,  essentially 
of  a  legislative  character,  but  then  they  were  scarcely  ever  in 
a  legislative  form.  It  is  not  matter  of  surprise  that  this  should 
have  been  so,  for  the  authority  prescribing  the  rule  immediately 
modified  or  explained  it,  if  it  gave  rise  to  any  inconvenience, 
or  was  found  to  be  ambiguous.  But  the  system  (of  which  the 
legality  had  long  been  doubted)  was  destroyed  by  the  Indian 
Councils  Act.  No  legislative  power  now  exists  in  India 
(which  is  not  derived  from  this  statute  ;  but  to  prevent  a 
/wholesale  cancellation  of  essentially  legislative  rules,  the 
)2  5th  section  gave  the  force  of  law  to  all  rules  made  previously 
(for  non-regulation  provinces  by  or  under  the  authority  of  the 
Government  of  India,  or  of  a  Lieutenant  Governor.  By  this 
provision  an  enormous  and  most  miscellaneous  mass  of  rules,, 
clothed  to  a  great  extent  in  general  and  popular  language, 
was  suddenly  established  as  law,  and  invested  with  solidity 
and  unchangeableness  to  a  degree  which  its  authors  had  never 

'  24  &  25  Vic.  c.  67. 


■^C/' 


OVER-LEGISLATION  243 

contemplated.  The  difficult}^of  ascertaining  what  is  law  and 
what  IS  not  in  the  former  non-regulation  provinces  is  really 
incredible.  I  have,  for  instance,  been  seriously  in  doubt 
whether  a  particular  clause  of  a  circular  intended  to  prescribe 
a  rule  or  to  convey  a  sarcasm.  The  necessity  for  authorita- 
tively declaring  rules  of  this  kind,  for  putting  them  into 
precise  language,  for  amending  them  when  their  policy  is 
doubted,  or  when  tried  by  the  severer  judicial  tests  now  ap- 
plied to  them  they  give  different  results  from  those  intended 
by  their  authors,  is  among  the  most  imperative  causes  of 
legislation.  Such  legislation  will,  however,  diminish  as  the 
process  of  simplif}'ing  and  declaring  these  rules  goes  on,  and 
must  ultimately  come  to  a  close. 

I  now  come  to  springs  of  legislation  which  appear  to  ^- 
increase  in  activity  rather  than  otherwise.  First  among  these  TTIOI'v  C^ 
I  do  not  hesitate  to  place  the  growing  influence  of  courts  of 
justice  and  of  legal  practitioners.  Our  courts  are  becoming 
more  careful  of  precise  rule  both  at  the  top  and  at  the  bottom. 
The  more  careful  legal  education  of  the  young  civilians  and 
of  the  younger  Native  judges  diffuses  the  habit  of  precision 
from  below ;  the  High  Courts,  in  the  exercise  of  their  pov^'ers 
of  supervision,  are  more  and  more  insisting  on  exactness  from 
above. 

An  even  more  powerful  influence  is  the  immense  multi-— " 
plication  of  legal  practitioners  in  the  country.     I  am  not  now  '^^i/*^/*^'^ 
speaking  of  European  practitioners,  though  their  number  has 
greatly  increased  of  late,  and  though  they  penetrate   much 
further  into  the  Mufassal  than  of  old.     The  great  addition, 
however,  is  to  the  numbers  and  influence  of  the  Native  Bar. 
Practically,  a  young  educated  Native,  pretending  to  anything 
above  a  clerkship,  adopts  one  of  two  occupations — either  he 
goes  into  the  service  of  Government,  or  he  joins  the  Native       ^  ^ 
Bar.      I   am  told,  and   I  believe  it  to  be  true,  that  the  Bar  is 
getting  to  be  more  and  more  preferred  to  Government  service       r 
by  the  educated  youth  of  the  countr}',  both  on  the  score  of  its 
gainfulness  and  on  the  score  of  its  independence. 

Now  the  law  of  India  is  at  present,  and  probably  will 
long  continue  to  be,  in  a  state  which  furnishes  opportunity 
for  the  suggestion  of  doubts  almost  without  limit.     The  older 


244  SPEECHES   OF   SIR   HENRY   INIAINE 

written  law  of  India  (the  Regulations  and  earlier  Acts)  is 
declared  in  language  which,  judged  by  modern  requirements, 
must  be  called  popular.  The  authoritative  Native  treatises  on 
law  are  so  vague  that,  from  many  of  the  dicta  embodied  in 
them,  almost  any  conclusion  can  be  drawn.  More  than  that, 
there  are.  as  the  Indian  Law  Commissioners  have  pointed  out, 
vast  gaps  and  interspaces  in  the  substantive  law  of  India  :  there 
are  subjects  on  which  no  rules  exist ;  and  the  rules  actually 
applied  by  the  courts  are  taken,  a  good  deal  at  haphazard, 
from  popular  text-books  of  English  law.  Such  a  condition 
kof  things  is  a  mine  of  legal  difficulty.  The  courts  are  getting 
.even  more  rigid  in  their  demand  of  legal  warrant  for  the 
actions  of  all  men,  officials  included.  The  lawyers  who 
practise  before  them  are  getting  more  and  more  astute,  and 
render  the  difficulty  of  pointing  to  such  legal  warrant  day  by 
day  greater.  And  unquestionably  the  Natives  of  India,  living 
in  the  constant  presence  of  courts  and  lawyers,  are  growing 
every  day  less  disposed  to  regard  an  Act  or  order  which  they 
dislike  as  an  unkindly  dispensation  of  Providence,  which  must 
be  submitted  to  with  all  the  patience  at  their  command.  If 
British  rule  is  doing  nothing  else,  it  is  steadily  communi- 
cating to  the  Native  the  consciousness  of  positive  rights,  not 
dependent  on  opinion  or  usage,  but  capable  of  being  actively 
enforced. 

It  is  not,   I   think,  difficult  to  see  how  this  state  of  the 

law,  and  this  condition  of  the  courts  and  bar,  renders  it  neces- 

Ssary  for  the  Local  Governments,  as  being  responsible  for  the 

efficiency  of  their  administration,  to  press  for  legislation.    The 

nature  of  the  necessity  can  best  be  judged  by  considering 

what  would  be  the  consequences  if  there  were  no  legislation, 

(/()( dx.     or  not  enough.     A  vast  variety  of  points  would  be  unsettled 

until  the  highest  tribunals  had  the  opportunity  of  deciding 

them,  and  the  government  of  the  country  would  be  to  a  great 

extent  handed  over  to  the  High  Courts,  or  to  other  courts  of 

appeal.     No  court  of  justice,  however,  can  pay  other  than 

incidental   regard   to    considerations  of  expediency,  and  the 

result  woujdjje  that  the  country  would  be  governed  on  prin- 

ciples  which  have  no  necessary  relation  to  policy  or  states- 

I  manship^     It  is  the  justification  of  legislation  that  it  settles 

^  difficulties    as    soon   as  they   arise,    and    settles    them    upon 


2-«-xCi-7' 


OVER-LEGISLATION  245 

considerations  which  a  court  of  justice  is  obliijed  to  leave  out 
of  sight.  / 

The  consequences  of  leaving  India  to  be  governed  byjthe  '^^ 
courts_jvouW^Jn_jTT^^  The    ^^^^^-U^ 

bolder  sort  of  officials  would,  I  think,  go  on  without  regard  to 
legal  rule  until  something  like  the  deadlock  would  be  reached 
with  which  we  are  about  to  deal  in  the   Panjab,  where,  if  the    y^ 
proportions  indicated  by  the  statistics  of  a  single  district  arc    •    -'• 
maintained  throughout  the  province,  the  settlement  officers      ^^ 
have  given  about  a  million   and   a  half  of  most  formidable         /'( 
decisions  upon  fundamental  rights  to  property  in  land,  while 
the  Chief  Court  has  ruled  that  about  seven  hundred  thousand 
of  these  decisions  are  bad  in   law.^     But  the  great  majority 
of  administrative   officials,  whether  weaker  or  less   reckless, 
would  observe  a  caution  and  hesitation  for  which  the  doubtful 
state  of  the  law  could  always  be  pleaded.     There  would,  in 
fact,  be  a  paralysis  of  administration  throughout  the  country. 

The  fact  established  by  the  paper  that  the  duties  created 
by  Indian  legislation  are  almost  entirely  official  duties,  ex-) 
plains  the  dislike  of  legislation  which  occasionally  shows  itselt 
here  and  there  in  India.     I  must  confess  that  I  have  always 
believed  the  feeling,  so  far  as  it  exists,  to  be  official,  and  to 
correspond  very  closely  to  the  repugnance  which  most  lawyers 
feel  to  having  the  most  disorderly  branch  of  case-law  super- 
seded by  the  simplest  and  best  drawn  of  statutes.     The  truth 
is,  that  nobody  likes  innovations  on  knowledge  whid^hejias 
once  acg^uired  with  difficulty.     If  there  was  one  legislative. 
change  which  seemed  at  the  time  to  be  more  rebelled  against! 
than    another,    it   was    the   supersession   of  the   former  civil) 
procedure  of  the  Panjab  by  the  Code  of  Civil  Procedure.    The 
civil  procedure  of  the  Panjab  had  originally  been  exceedingly 
simple,  and  far  better  suited  to  the  country  than  the  then 
existing    procedure    of  the    regulation  provinces.      But  two 
years  ago  it  had  become  so   overlaid  by   explanations  and 
modifications    conveyed    in    circular    orders    that    I    do    not 
hesitate  to  pronounce  it  as  uncertain  and  difficult  a  body  of 
rules  as  I  ever  attempted  to  study.      I   can  speak  with  con- 
fidence on  the  point ;  for  I  came  to  India  strange  both  to  the 
Code  of  Civil  Procedure   and   to  the  civil   procedure  of  the 
'  See_below,  pp.  268,  269. 


246  SPEECHES   OF   SIR   HENRY   MAINE 

Panjab,  and,  while  the  first  has  always  seemed  to  me  nearly 
-^>  the  simplest  and  clearest  system  of  the  kind  in  the  world,   I 

must  own  I  never  felt  sure  in  any  case  what  was  the  Panjab 
rule.  The  introduction  of  the  code  was,  in  fact,  the  merest 
act  of  justice  to  the  young  generation  of  Panjab  officials,  yet 
the  older  men  spoke  of  the  measure  as  if  some  ultra-technical 
body  of  law  were  being  forced  on  a  service  accustomed  to 
courts  of  primitive  simplicity. 

It  must,  on  the  other  hand,  be  adnTJtted  Jhat  in  creating 
new  official  duties  by  legislation  we  probably  in  some  degree 
fetter    official    discretion.     There    is    no    doubt    a    decay    of 
discretionary  administration  throughout   India;  and,  indeed, 
it  may  be  said  that  in  one  sense  there  is  now  not  more,  but 
much    less,    legislation    in    the    country  than   formerly ;    for, 
strictly  speaking,  legislation    takes  place  every  time  a  new 
rule  is  set  to  the  people,  and  it  may  be  taken  for  granted  that 
in  earlier  days   collectors   and  commissioners  changed  their 
rules  far  oftener  than  does  the  Legislature  at  present.     The 
truth    is,    discretionary  government  is  inconsistent  with  the 
existence  ^  l^ular  courts    and  trained  lawyers,  and  since 
these  must  be  tolerated  the  proper  course  seems  to  me  not 
to    indulge    in    vague    condemnation    of   legislation,    but    to 
d i scover  expedients  by  which  its  tendency  to  hampe r  d iscre^ 
tjonmay  be  minimised     One  of  these  may  be  found  in  the 
■i  skilful  drafting  of  our  laws — in  confining  them  as  much  as 
possible  to  the  statement  of  principles  and  of  well-considered 
general   propositions,  and  in  encumbering  them  as  little  as 
^  possible    with  detail.     Another    may  be  pointed    out  in  the 
extension  of  the  wholesome  practice  of  conferring  by  our  Acts 
on    Local    Governments  or  other    authorities    the    power  of 
making  rules  consistent  with  the  Act — a  power  in  the  exercise 
of  which  they  will  be  assisted  by  the  Legislative  Department 
J,  under  a  recent  order  of  His  Excellency.    Lastly,  but  principally, 
we  may  hope  to  mitigate  the  inconveniences  of  legislation  by 
the  simplification  of  our  legislative  machinery  as  applied  to 
those  less  advanced  parts  of  the  country  where  a  large  dis- 
. /K^cretion  must  inevitably  be  vested  in  the  administrator.     The 
I    jif     (power  of  easily  altering  rules  when  they  chafe,  and  of  easily 
?iJ^'         'indemnifying    officials    when   they   transgress   rules   in  good 


JUDICIAL   TAXATION  247 

faith,  is  urgently  needed  b}'  us  in  respect  of  the  wilder  terri- 
tory of  India. 

While  I  admit  that  the  abridgment  of  discretion  by 
written  laws  is  to  some  extent  an  evil — though,  under  the 
actual  circumstances  of  India  an  inevitable  evil — I  do  not 
admit  the  proposition  which  is  sometimes  advanced  that  the 
Natives  of  India  dislike  the  abridgment  of  official  discretion. 
This  assertion  seems  to  me  not  only  unsupported  by  any 
evidence,  but  to  be  contrary  to  all  the  probabilities.  It  may 
be  allowed  that  in  some  cases  discretionary  government  is 
absolutely  necessary;  but  why  should  a  people  which, 
measures  religious  zeal  and  personal  rank  and  respectability) 
by  rigid  adherence  to  usage  and  custom  have  a  fancy  for^ 
rapid  changes  in  the  actions  of  its  governors,  and  prefer  a 
regimen  of  discretion,  sometimes  coming  close  upon  caprice, 
to  a  regimen  of  law  .''  I  do  not  profess  to  know  the  Natives 
of  this  country  as  well  as  others,  but  if  they  are  to  be  judged 
by  their  writings  they  have  no  such  preference.  The  educated 
youth  of  India  certainly  affect  a  dislike  of  many  things  which 
they  do  not  care  about,  and  pretend  to  many  tastes  which 
they  do  not  really  share  ;  but  the  repugnance  which  they 
invariably  profess  for  discretionary  government  has  always 
seemed  to  me  genuinely  hearty  and  sincere. 

JUDICIAL    TAXATION 

iMaRCH    I,    1867. 

The  primary  object  of  the  Bill  referred  to  in  the  following  remarks 
was  to  replace  schedule  B  of  the  Stamp  Act  of  1862  by  a  schedule 
■so  framed  that  a  larger  revenue  might  be  derived  from  suitors. 

Mr.  Maine,  after  acknowledging  the  services  of  the  committee 
on  whose  recommendations  the  Bill  was  framed, 

wished  to  reply  by  anticipation  to  certain  objections  of  a  general 

character  which  might  be  urged  against  their  recommendations. 

His  Excellency  the  president  would  remember  that,  when  it 
•was  originally  proposed  that  this  committee  should  be  formed, 

a  distinguished  officer  of  Government  had,  without  expressing 
■any  opinion  as  to  the  existing  scale  of  duties,  stated  that  he 

had  a  general  objection  to  judicial  taxation,  and  requested  to 


248  SPEECHES   OF   SIR   HENRY   MAINE 

be  relieved  from  service  on  the  committee.  The  same  general 
objection  had  been  repeated  in  some  papers  which  had  fallen 
under  Mr.  Maine's  observation,  and  in  particular  in  a  letter 
from  the  Bombay  Chamber  of  Commerce.  Mr.  Maine  believed 
that  there  was  a  complete  answer  to  that  objection,  and  it  would 
be  well  that  it  should  be  stated.  No  doubt  all  generalities 
were  every  day  becoming  more  and  more  formidable  in  India  ; 
but  there  was  a  special  reason  for  distrusting  all  general  pro- 
positions as  to  taxes  on  judicial  proceedings  after  the  facts  and 
arguments  adduced  by  his  honourable  friend  Mr.  Hobhouse 
had  received  proper  attention.  If  there  were  one  general  pro- 
position which  at  first  sight  seemed  clearer  than  another  in 
connection  with  this  subject,  it  was  that  it  was  improper  to 
require  a  stamp  on  applications  to  the  criminal  courts  for  the 
redress  of  wrong.  Mr.  Maine  felt  sure  that  if  the  question  had 
been  submitted  five  or  six  years  ago  to  him,  as  it  was  to  the 
present  Chief  Justice  of  Bengal,  whether  certain  petitions  to 
the  criminal  courts  should  be  taxed,  he  should  have  agreed 
with  Sir  Barnes  Peacock.  Yet,  what  had  been  the  practical 
result  of  this  relaxation  of  the  stamp  law  .''  They  had  it  on 
irrefragable  authority  that  the  result  had  been  to  produce 
seventy-five  per  cent,  of  demonstrably  false  accusations — accu- 
sations the  greater  number  of  which  were  not  persevered  in, 
the  accuser  having  gained  his  point  by  the  fact  of  accusing,, 
the  remainder  being  rejected  by  the  courts.  This  astounding 
fact  might  well  make  them  cautious  as  to  minor,  and  therefore 
less  hazardous  generalities,  on  the  subject  of  judicial  taxes  in 
India.  But  it  still  remained  to  refute  the  more  sweeping 
generalisation  that  judicial  taxes  in  all  countries  were  mis- 
chievous and  improper.  Mr.  Maine  was  convinced  that  his 
right  honourable  friend  Mr.  Massey  ^  would  concur  with  him  in 
saying  that  the  opinion  against  judicial  taxation  was  extremely 
modern.  For  centuries  on  centuries  there  had  seemed  to  be 
nothing  more  simple  or  natural  than  that  the  parties  to  a  dis- 
pute should  remunerate  the  authority  by  whom  their  differences 
were  arranged.     No  doubt,  in  modern  Europe  the  mistake  had 


'  The  Right  Hon.  W.  N.   Massey,       in  charge  of  the  Financial  Department 
formerly  Chairman  of    Committees  in       of  the  Government  of  India, 
the  House  of  Commons,  and  in  1867 


JUDICIAL   TAXATIOx\  249 

been  made  of  allowing  judicial  fees  to  go  into  the  pocket  of 
the  Judge  himself,  and  not  into  the  exchequer  of  the  State 
that  paid  him.  This  had  led  in  France,  before  the  Revolu- 
tion, by  a  perfectly  logical  association,  to  the  sale  of  judicial 
offices ;  and  in  England,  though  it  had  always  been  illegal  to 
traffic  in  such  offices,  the  same  result  had  practically  been  ob- 
tained by  the  creation  of  sinecures  which  were  conferred  on 
relations  of  the  Judge.  Against  such  scandals  and  abuses 
Jeremy  Bentham,  now  not  far  short  of  a  hundred  years  ago, 
protested  with  all  the  vehemence  of  which  he  was  capable,  and 
Mr.  Maine  ventured  to  say  that  the  opinion  against  judicial 
taxation  was  entirely  produced  by  Jeremy  Bentham,  and  was 
not  older.  It  was  true,  as  Mr.  Hobhouse  had  observed,  that 
Jeremy  Bentham's  opinions  in  this  respect  had  not  been  prac- 
ticall}'  carried  out  at  home,  and  that  large  amounts  were  still 
levied  in  the  form  of  judicial  taxes  in  aid  of  the  payments 
which  the  State  made  to  its  judicial  officers.  But  the  truth 
was,  that  Bentham's  name  was  now  so  great  in  England  that 
even  those  views  of  his  which  had  never  been  acted  upon  had 
obtained  currency  and  importance  in  the  shape  of  common- 
places. It  was,  however,  an  urgent  matter  to  inquire  what 
were  the  reasons  of  Bentham  for  denouncing  judicial  taxation 
as  mischievous.  Not  certainly  any  vague  notion,  couched  in 
figurative  language,  that  you  must  not  tax  justice.  Bentham's 
idea  was  that  all  litigation,  or  all  but  a  very  little,  was  entirely 
the  fault  of  Government,  and  therefore  he  naturally  objected 
that  Government,  which  caused  litigation,  should  profit  by  it. 
Bentham  believed  that  litigation  was  owing  to  the  complexity 
of  law,  and  that  this  litigation  might  be  almost  entirely  re- 
moved by  legislation  adapted  to  true  principles.  Rethought 
that  litigation,  and  therefore  the  expense  of  litigation,  might 
be  reduced  to  a  minimum  if  it  were  not  for  the  blindness,  or 
the  stupidity,  or  the  cupidity  of  legislatures  in  not  simplifying 
the  laws.  Mr.  Maine  would  quote  the  panacea  expressly  pre- 
scribed by  Bentham  for  the  all  but  complete  suppression  of 
fees  and  costs  :  '  An  all-comprehensive  code  of  substanti\"e 
law,  having  for  its  end  in  view  the  greatest  happiness  of  the 
greatest  number,  each  part  of  it  present  to  the  minds  of  all 
persons  on  whom  conformity  to  its  enactments,  its  attainment 


2  50  SPEECHES   OF   SIR    HENRY   MAINE 

of  its  end,  depends,  and  an  all-comprehensive  code  of  adjective 
law,  otherwise  called  a  code  of  procedure,  having  for  its  end 
the  giving,  to  the  utmost  possible  amount,  execution  and  effect 
to  the  enactments  of  the  substantive  code.'  The  passage  was 
quoted  from  the  Principles  of  Judicial  Procedure  2A^sX.2iX.Q.v^e.x\\. 
of  Bentham's  expedient  for  preventing  judicial  taxation,  and 
accordingly  he  argued  with  perfect  logic  that  if  costs  and  fees 
were  inevitable,  it  was  the  Government  and  not  the  litigant 
that  ought  to  pay  them. 

Now,  without  entering  into  the  question  of  the  truth  of 
these  views,  had  they  any  application  whatever  to  India  .''  The 
simple  fact  was  that  the  people  of  India  objected  to  having 
their  laws  and  institutions  simplified,'  and  resented  such  inter- 
ference as  a  breach  of  the  conditions  on  which  the  country  was 
governed.  There  was  an  excellent  illustration  in  the  Indian 
Succession  Act,  the  only  chapter  of  that  code  of  substantive 
law  contemplated  by  Bentham  which  was  at  present  in  force 
in  India.  As  it  had  been  passed  by  this  Council  in  almost 
the  same  form  as  it  had  been  received  from  the  Indian  Law 
Commissioners,  Mr.  Maine  might  describe  it  without  vanity  as 
a  most  excellent  and  equitable  piece  of  legislation.  But  the 
first  admission  that  had  to  be  made  by  the  Indian  Law  Com- 
missioners, by  the  Home  Government,  and  by  themselves,  was 
that  it  could  not  possibly  be  extended  to  the  intestate  succes- 
sions of  Hindus,  Muhammadans,  and  Buddhists,  or,  in  other 
words,  to  the  great  mass  of  the  population.  They  were  told 
that  it  was  as  much  as  the  empire  was  worth  to  impose  an 
uniform  law  of  intestate  succession  on  the  country  ;  and  so 
inveterate  had  become  the  conviction  that  each  sect  of  the 
country  was  entitled  to  its  own  law  of  succession,  that  Mr. 
Maine  would  be  surprised  if,  when  the  measure  for  extending 
the  Succession  Act  to  the  Straits'  Settlement  came  on  for  dis- 
cussion, it  was  not  contended  that  every  division  of  that  hete- 
rogeneous community  was  entitled  to  its  own  law,  and  that 
even  the  Sandwich  Islander  had  a  right  to  have  his  law  of 
inheritance  administered  by  the  Courts.    Now%  it  had  been  cal- 

'   Mr.  Maine  here  refers  merely  to  laws  of  contract,  trusts,  easements,  allu- 

the    Native    laws    of    inheritance   and  vion,  partition,  torts,  etc., the  Natives  are 

adoption,  which  are  inextricably  bound  strongly    in    favour    of    all   practicable 

up  with  the  Native  religions.  As  to  the  simplification. 


JUDICIAL   TAXATION  2$  I 

Ciliated  that  nine-tenths  of  the  heavier  Htigation  of  England, 
that  which  came  into  the  Court  of  Chancery,  was  occasioned 
by  the  English  law  of  succession.  But  the  Hindu  law  on  the 
subject  was  at  least  as  complex  as  the  English,  and  it  was 
mixed  up  with  and  dependent  on  the  system  of  adoption,  and 
the  system  of  joint  occupation  of  property  during  life.  This 
was  then  a  case  in  which  the  strong  feeling  of  the  people  had 
compelled  the  Legislature  to  maintain  a  most  complex  system 
of  law,  and  one  most  fruitful  of  litigation.  Another  most 
striking  illustration  of  the  Native  feeling  on  the  subject  of 
simplifying  had  been  furnished  by  some  of  the  answers  to  a 
circular  recently  prepared  by  the  Secretary,'  and  issued  from 
the  Home  Department.  This  circular  referred  to  the  formalities 
of  executing  w^ills  :  it  did  not  propose  that  the  actual  power  of 
making  a  will  should  be  cither  extended  or  diminished  ;  but  it 
suggested  that  certain  securities  against  fraud,  such  as  signature 
and  attestation,  should  accompan\^  the  execution  of  ever}'  will. 
From  the  more  enlightened  parts  of  India  the  answers  were 
favourable,  but  from  those  sections  of  the  country  which  re- 
quired the  most  careful  watching  what  was  the  reply  ?  It  was 
remarkable  that  the  Muhammadans  of  the  North-Western 
Provinces  made,  in  the  most  express  language,  every  admis- 
sion which  Bentham  would  have  required.  They  allowed  that 
every  sort  of  fraud  resulted  from  the  system  of  oral  death-bed 
wills  ;  but  they  urged  that  it  was  an  inference  from  the  words  of 
their  Prophet  that  a  man  up  to  the  last  moment  of  his  life  might 
bequeath  by  word  of  mouth  whatever  property  he  might  law- 
fully dispose  of,  and  hence  they  resented  as  an  outrage  on  their 
religious  feelings  the  imposition  of  the  formalities  required  by 
the  Succession  Act.  The  Hindus  followed  suit.  They  admitted 
that  wills,  oral  or  writtten,  were  no  part  of  their  religious 
system  ;  but  they  argued  that  they  ought  not  to  be  placed  in 
a  worse  position  than  the  Muhammadans,  and  that  they  were 
entitled  to  as  many  prejudices  as  any  Muhammadan.  Hence 
they,  too,  objected  to  the  simplification  of  the  law.  The  truth 
appeared  to  be  that  the  people  of  this  country  were  not  only 
wedded  by  custom  and  religious  feeling  to  complex  systems 
of  law,  but  prided  themselves  on  their  usages  in  proportion  to 

'    Mr.  \Vhitley  Stokes. 


252  SPEECHES   OF   SIR   HENRY   MAINE 

the  complexity  of  those  usages.  If  this  were  so,  the  founda- 
tion of  Bentham's  doctrine  collapsed,  and  the  doctrine  itself 
had  no  application  in  India.  The  Legislature  was  estopped,  by 
the  conditions  of  our  tenure  of  the  country,  from  so  simplify- 
ing the  law  as  to  render  judicial  taxation  mischievous.  Mr. 
Maine  did  not  mean  to  imply  that  indefinite  judicial  taxa- 
tion was  legitimate  in  this  country.  All  he  argued  was,  that 
it  was  governed  by  the  same  principles  as  the  levying  of  any 
other  tax,  and  not  by  any  special  consideration  of  the  mis- 
chievousness  of  judicial  taxation. 

On  March  20,  1868,  when  Mr.  Massey  introduced  a  Bill  for  taxing 
professions,  occupations,  and  trades,  two  of  the  members,  Mr.  J.  I. 
Minchin  and  Mr.  M.  J.  Shaw  Stewart,  took  objections  to  the  stamp 
fees  with  which  it  was  proposed  to  charge  petitions  to  executive  officers, 
and  criminal  courts.     Mr.  Maine  thereupon  remarked  : 

There  were  two  classes  of  stamps  with  which  his  honour- 
able friends  appeared  to  have  a  special  quarrel,  and  on  which 
it  was  necessary  to  observe  specially.  Mr.  Minchin  objected 
to  the  stamp  fee  on  petitions  addressed  to  executive  officers, 
and  he  had  defined  the  Government  of  India  as  a  despotism 
limited  by  the  right  of  petition.  Now,  Mr.  Maine  really  did 
not  see  that  despotism  had  much  to  do  with  the  question  ;  for 
he  understood  that  these  petitions  had  reference  to  private 
interests,  as  to  which  the  old  doctrine  still  held  good  that  it 
did  not  matter  half  a  crown  to  a  man  under  what  Government 
he  lived.  If,  however,  despotism  must  enter  into  the  definition, 
the  Government  of  India  might  be  defined  as  a  despotism 
limited  by  the  incapacity  of  its  officers  to  do  more  than  a 
certain  amount  of  work.  The  case  which  had  been  laid  before 
the  Government  was  that  its  executive  officers  were  inundated 
with  multitudes  of  petitions  on  foolish  or  trivial  subjects,  and 
they  found  themselves  placed  in  the  alternative,  either  of  not 
reading  the  petitions  or  of  placing  some  check  on  their 
presentation.  The  check  devised  was  the  levy  of  a  small 
fee,  which  was  in  effect  an  addition  to  the  price  of  the  paper 
on  which  the  petition  was  tendered.  In  this  way  the  peti- 
tioner was  forced  to  think  before  he  wrote.  Mr.  Maine's  own 
very  limited  experience  certainl}-  led  him  to  think  that  there 
was  common-sense  in  the  expedient.  Nobody  charged  with 
the  legislative  business  of  the  Government  of   India  would 


JUDICIAL   TAXATION  253 

ever  fail  to  receive  a  crowd  of  letters  containing  suggestions, 
remonstrances,  and  objections  relating  to  legislation  generally 
or  to  Bills  before  the  Council.  i\Ir.  Maine's  own  conviction 
was  that  nothing  saved  him  from  a  perfectly  overwhelming 
correspondence  except  the  practice  of  the  Natives  of  India, 
not  simply  to  pay  the  postage  on  letters  which  they  thought 
important,  but  to  register  them  also,  in  order  that  they  might 
certainly  arrive  at  their  destination.  It  was  to  be  recollected 
that  no  price  was  put  on  oral  complaints,  and  the  complainant 
might  still  get  audience  of  the  officer.  If  the  fee  on  petitions 
pressed  too  harshly — and  this  was  a  point  to  be  investigated 
like  the  others — Mr.  Maine  was  of  opinion  that  the  appropriate 
remedy  would  be  to  increase  the  facilities  for  approach  to  the 
executive  functionary  of  the  Government. 

Now  then,  as  to  the  stamp  on  complaints  addressed  to  the 
criminal  courts,  which  appeared  to  excite  so  much  indigna- 
tion in  the  Bombay  Presidency  and  in  the  mind  of  his 
honourable  friend  Mr.  Shaw  Stewart.  If  ever  there  was  a 
subject  on  which  it  was  idle  to  repeat  the  ordinary  common- 
places as  to  the  denial  of  justice  (they  might  not  be  common- 
places as  Mr.  Minchin  had  put  them,  but  they  were  the 
common  and  current  opinions),  it  was  this.  Mr.  Maine  must 
recall  to  the  Council  the  extraordinary  and  appalling  fact 
which  had  been  brought  home  to  the  Stamp  Committee  by 
its  investigations  in  1866.  Bengal  Proper  was  the  great 
litigating  province  in  British  India,  and  it  was  established 
that  the  result  of  taking  the  stamp  off  complaints  in  criminal 
cases  was,  that  of  177,000  persons  charged  with  offences  in  the 
single  year  1864,  105,000  were  never  brought  to  trial,  and 
more  than  half  the  rest  were  acquitted.  Mr.  Justice  Hobhouse  ' 
had  explained  to  the  Council  last  year  how  these  105,000 
cases  never  came  to  be  tried.  There  was  a  quarrel  in  the 
village.  An  angry  villager  went  to  the  court,  paid  one  of 
the  persons  hanging  about  there  a  few  pice  to  write  a 
complaint,  in  which  the  name  of  his  bitterest  enemy  was  put 
down  as  defendant  to  a  criminal  charge,  while  the  persons 
whom  he  hated  with  an  only  moderate  hatred  were  named 
as  witnesses.     The  defendant  and  the  witnesses  were  thcrc- 

'  Now  Sir  Charles  Hobhouse,  Uart. 


254  SPEECHES   OF   SIR    HENRY    MAINE 

upon  summoned  by  the  police  ;  the  complainant  never  ap- 
peared, and  the  charge  was  dismissed.  But  the  defendant 
and  the  witnesses  went  home,  having  lost  two  or  three  days' 
work,  and  labouring  for  life  under  the  discredit — which  it  was 
honourable  to  the  Bengali's  to  consider  a  discredit — of  having 
been  brought  up  before  the  court  on  a  criminal  accusation. 
It  was  true  that  things  did  not  seem  to  be  quite  so  bad  in 
other  parts  of  India  ;  but,  after  all,  the  great  difference 
between  the  Bengali's  and  the  natives  of  the  rest  of  India 
was  that  they  were  more  quick-witted,  and  Mr.  Maine  sus- 
pected that  the  secret  of  the  difference  was  that  it  had  not 
been  discovered  in  the  other  provinces  to  what  use  the  courts 
might  be  put.  But  the  fact  was  established  that  in  the 
province  in  which  resort  to  the  courts  was  most  diffused,  out 
of  every  hundred  criminal  charges  made,  seventy-five  were 
false  and  fifty  were  malicious.  The  courts  in  fact  were,  in 
one  great  province  actually,  and  in  others  potentially,  an 
engine  of  cruel  oppression.  Now  let  the  Council  suppose 
that,  apart  from  any  financial  emergency,  the  question  was 
before  it  how  to  deal  with  the  state  of  things  he  had  described. 
It  was  the  undoubted  duty  of  the  Government  to  keep  courts 
open  for  the  redress  of  wrong.  But  it  was  also  the  duty  of 
Government  to  shield  its  subjects  from  the  deep  injury  of  false 
and  malicious  accusation.  If  the  two  duties  conflicted  (and 
Mr.  Maine  trusted  that  this  was  a  practical,  as  much  as  it 
was  a  theoretical,  paradox),  he  was  not  sure  that  it  would  not 
be  better  to  close  the  courts,  and  thus  stop  the  utter  demoral- 
isation of  which  they  were  the  source.  But  if  a  less  extreme 
course  were  desirable,  it  might  occur  to  a  legislator  fresh 
from  Europe  to  adopt  what  practically  was  the  French 
system,  and  to  collect  the  materials  of  accusation  entirely 
from  the  inquiries  of  our  own  officers.  If,  however,  the  natives 
of  India  were  to  be  taken  as  they  were,  and  if  the  police 
could  not  be  used  for  this  purpose,  Mr.  Maine  was  not  sure 
that  the  system  of  the  Stamp  Act  of  1867  was  not  as  reason- 
able a  one  as  could  be  devised.  If  a  man  came  to  the  court 
and  merely  wished  to  deposit  a  complaint  in  writing  against 
his  neighbour,  a  small  fee  was  demanded  from  him  as  a 
guarantee  of  his  seriousness.      If,  howe\er,  he  was  too  poor  to 


JUDICIAL   TAXATION  2$$. 

pay  it,  he  went  before  the  magistrate  and  stated  his  grievance 
orally,  and  it  was  in  the  discretion  of  the  magistrate  whether, 
in  reducing  the  complaint  to  writing,  he  would  demand  the 
fee  or  not.  The  expedient  might  not  be  a  good  one  ;  but  it 
was  for  those  who  objected  to  it  to  suggest  a  better.  In  Mr. 
Maine's  opinion  it  would  be  discreditable  to  the  Council  to 
abolish  the  stamp  without  at  the  same  time  finding  a  remedy 
for  this  monstrous  evil  of  wholesale  false  accusation. 

His  honourable  friend  Mr.  Minchin  had  concluded  by 
appealing  to  His  Excellency  for  untaxed  justice  to  the  poor 
The  proposition  implied  in  the  appeal  was  one  which  had 
commended  itself  to  persons  who,  without  disparagement  to 
Mr.  Minchin,  he  might  call  more  eminent  than  his  honourable 
friend.  At  a  more  convenient  time,  Mr.  Maine  would  en- 
deavour to  point  out  what,  in  his  judgment,  was  the  fallacy 
that  underlay  all  arguments  against  judicial  taxation.  In  his 
own  opinion,  the  taxes  improperly  called  taxes  on  justice 
were  fully  as  justifiable  as  any  other  taxes  ;  but  on  the  same 
conditions,  namely,  that  they  should  not  be  either  excessive 
or  oppressive.  He  knew  of  no  country  in  which  there  was 
no  judicial  taxation,  and  he  was  certain  that  the  experience 
of  every  man  in  the  room  would  bear  him  out  in  the  assertion 
that  if  the  theories  of  his  honourable  friends  were  carried  to 
their  full  practical  consequences,  and  if  the  natives  of  India, 
without  paying  an  anna  and  at  the  expense  of  Government, 
were  allowed  to  put  the  machinery  of  the  civil  courts  in  motion 
against  everybody  they  pleased,  and  in  vindication  of  any 
alleged  right  they  pleased,  the  only  class  of  persons  in  the 
country  to  whom  life  would  be  tolerable  would  be  those  who  had 
no  property  whatever  in  respect  of  which  they  could  be  sued. 
Thus,  the  excess  of  civilised  justice  would  produce  precisely 
the  same  results  as  the  extremes  of  anarchy  and  barbarism. 

On  September  lo,  1869,  when  the  late  Mr.  F.  R.  Cockerell  moved 
for  leave  to  introduce  a  Bill  to  provide  for  the  better  regulation  of 
court  fees,  Mr.  Maine  said  that 

he  had  been  desirous  of  explaining  away  two  misappre- 
hensions, one  much  more  important  than  the  other,  which 
were  disclosed  by  the  papers  which  he  and  his  honourable 
friend  had  examined.     One  of  these  was  the  mistaken  idea 


256  SPEECHES   OF   SIR    HENRY   MAINE 

that  the  Government  of  India  had  ever  started  or  encou- 
raged the  doctrine  that  the  taxation  of  the  administration 
of  justice  was  a  justifiable  mode  of  recruiting  the  general 
finances  of  the  empire.  In  order  to  dispose  of  that  statement, 
it  would  be  enough  to  refer  to  a  paper  furnished  to  Mr.  Maine 
by  the  Secretary  in  the  Financial  Department.  The  figures 
could  not  be  quite  confidently  interpreted  on  account  of  the 
system — which,  Mr.  Maine  hoped,  would  be  abolished — of  lump- 
ing together  the  revenue  derived  from  general  or  documentary 
stamps  and  that  derived  from  judicial  stamps,  which  were,  in 
reality,  court-fees.  A  conclusion  which  was  roughly  true 
might,  however,  be  founded  on  the  figures,  and  it  appeared 
from  them  that  the  litigating  part  of  the  Indian  community 
paid  just  about  half  the  expense  of  the  administration  of 
justice,  and  this  result  was  reached  without  debiting  that  ad- 
ministration with  the  cost  of  the  revenue  courts,  which,  of 
course,  in  many  of  their  functions  were  just  as  much  courts 
of  justice  as  any  others.  The  inference  was  that  the  part  of 
the  community  which,  in  India,  availed  itself  of  the  courts 
contributed  less  to  their  cost  than  the  corresponding  section 
of  any  civilised  community,  although  the  courts  in  this 
countr}^  were  resorted  to  in  many  matters  which  elsewhere 
were  settled  b}'  private  adjustment.  All  the  rest  of  the 
expense  of  the  administration  of  justice  was  paid  by  the 
general  body  of  tax-payers,  for  which  the  Government  was 
trustee.  The  question,  therefore,  whether  justice  might  be 
taxed  for  the  general  purposes  of  the  State  did  not  arise  in 
India.  Nor  did  the  history  of  the  scale  of  1867  •  bear  out  the 
doctrine  he  had  been  disclaiming.  Mr.  Cockerell  had  cor- 
rectly stated  that  there  had  been  many  representations  to  the 
Government  of  India  that  the  scale  of  1862  -  was  too  low,  and 
capriciously  arranged.  These  representations  might  not  have 
been  attended  to  but  for  the  anxiety  of  the  late  Viceroy  to 
carry  into  effect  a  measure  which,  in  the  farewell  given  to 
Lord  Lawrence  by  the  community  of  Calcutta,  had  been  de- 
scribed b}'  the  Commander-in-Chief  as  one  of  his  highest  titles 
to  the  recollection  of  the  people  of  India.     Lord  Lawrence 

'  The  scale  established  by  Act  XXVI.  of  1867. 
-  The  scale  established  by  Act  X.  of  1862. 


JUDICIAL   TAXATION  257 

had,  very  carK'-  in  his  career,  formed  the  opinion  that  the 
greatest  evils  arose  from  the  under-payment  of  the  lower 
Mufassal  judges,  and  of  the  officers  of  their  courts,  and  he 
had  much  at  heart  the  improvement  of  their  position.  The 
plans  which  he  had  been  considering  came  to  maturity  in 
1866 ;  but,  as  His  Excellency'  would  easily  believe,  the  finances 
of  the  country  were  ill  able  to  bear  the  additional  burden. 
Accordingly,  it  was  determined  to  institute  an  inquiry  directed 
to  ascertain  whether,  as  the  quality  of  the  justice  to  be  ad- 
ministered was  to  be  so  much  improved,  the  suitors  might  not 
fairly  be  asked  to  contribute  something  more  towards  the  cost 
of  administering  it.  Every  precaution  was  taken  to  secure 
a  great  weight  of  authority  for  the  new  scale.  The  Com- 
mission appointed  by  the  Government  included  gentlemen 
of  the  highest  judicial  eminence  both  in  the  High  and  in  the 
Mufassal  Courts,  and  it  was  requested  so  to  arrange  its  sittings 
as  to  be  assisted  by  the  additional  members  of  Council  who 
were  just  arriving  in  Calcutta.  The  scale  of  1867  was  the 
result  of  the  labours  of  the  Commission,  and  though,  as  Mr. 
Cockerell  had  put  it,  there  might  be  some  appearance  of 
haste  in  passing  the  measure  through  the  Council,  this  haste 
was,  as  his  honourable  friend  had  correctly  stated,  no  more 
than  was  inevitable  in  the  case  of  taxing  Bills  of  this  nature. 
There  was  nothing  like  precipitation  in  settling  the  basis  of 
the  measure.  Mr.  Cockerell  was  further  right  in  saying  that 
Lord  Lawrence  promised  an  inquiry  into  the  working  of  the 
new  scale,  which  some  had  questioned  from  the  first,  though 
these  were  mostly  persons  under  the  influence  of  a  prion 
ideas.  The  present  measure  resulted  from  that  inquiry.  The 
statements  and  opinions  placed  before  Government  perhaps 
struck  Mr.  Maine  as  rather  more  contradictory  and  unsatis- 
factory than  they  appeared  to  his  honourable  friend  ;  but 
still  Mr.  Maine  had  no  doubt  that  the  scale  required  reduction 
in  some  particulars.  Such  experiments  as  the  Commission 
of  1867  had  attempted  were  always,  as  he  supposed,  more  or 
less  leaps  in  the  dark  ;  and  it  certainly  .seemed  as  if  the  Com- 
mission had  to  some  extent  leapt  too  far.  But  assuredly  the 
last  thing  which  could  be  attributed  to  it,  or  to  the  Govern - 

'   Lord  Mayo,  then  Viceroy  of  India  and  President  of  the  Council. 

S 


258  SrEECIIES   OF   SIR   HENRY   MAINE 

ment,  was  a  policy  of  taxing  litigants,  as  a  separate  class,  for 
the  benefit  of  the  general  finances. 

The  other  misapprehension  to  which  Mr.  Maine  had  re- 
ferred was  of  very  much  less  importance.  It  seemed  to  be 
supposed  that  he  himself  had  at  some  time  or  other  elabo- 
rately justified  the  policy  of  filling  the  Treasury  by  taxing 
litigants.  He  might  be  permitted  to  say  that  he  had  never 
done  anything  of  the  kind.  What  he  really  had  done  was  to 
contend  against  the  extreme  theories — and  His  Excellency 
must  have  already  learned  that  this  was  a  country  of  extreme 
theories — of  certain  gentlemen  who  argued,  if  the  logical 
consequences  of  their  doctrines  were  to  be  accepted,  that  the 
litigant  should  contribute  nothing  towards  the  expenses  of 
litigation.  Some  people  seemed  to  suppose  that  governments 
ought  to  belike  Oriental  monarchs,  who  first  appropriated  the 
greatest  part  of  the  property  of  their  subjects,  and  then,  by 
way  of  compensation,  sat  in  the  gate  and  administered  justice 
for  nothing.  Mr.  Maine  was  not  going  to  trouble  the  Council 
with  any  discussion  of  abstract  doctrines  ;  but,  as  in  matters 
of  this  kind  a  grain  or  two  of  fact  was  worth  a  bushel  of 
theory,  he  would  call  their  attention  to  a  fact  immediatel)^ 
before  their  eyes  which  came  home  to  them  for  a  special 
reason.  A  late  colleague  of  theirs,  Babu  Prasanna  Kumar 
Thakur,  a  most  astute  law}^er,  left  a  will  in  which,  for  reasons 
entirely  personal  to  himself  and  his  family,  he  raised  a  series 
of  the  most  difficult  questions  which  could  possibly  perplex 
an  Indian  Court.  He  in  fact  attempted,  for  objects  of  his 
own,  to  see  how  far  some  of  the  most  recondite  feudal 
doctrines  of  English  law  could  be  made  to  apply  to  India. 
During  the  last  few  months,  much  of  the  time  and  a  vast 
amount  of  the  intellectual  strength  of  the  Calcutta  High 
Court  had  been  employed  in  construing  this  will.'  But  why 
on  earth  should  the  Government  furnish  for  nothing  a  most 
costly  machinery  for  the  purpose  of  unravelling  the  perplexi- 
ties of  such  a  document  ?  Or,  to  take  the  converse  case,  why 
should  it  supply  judges  gratuitously  to  construe  perfectly 
stupid  and  ungrammatical  wills  ?     Or  why  should  it  pay  for 

'   It  afterwards  went  up  to  the  Judi-       See  the  report,    Tagore  v.    Tagorc, 
cial  Committee  of  the  Privy  Council.       Bengal  Law  Reports,  395. 


MURDEROUS   OUTRAGES    IN    THE    I'AXJAP.  259 

the  windinL^-up  of  an  insolvent  joint-stock  company  ?  The 
truth  was  that,  though  people  were  often  involved  in  litigation 
through  no  fault  of  their  own,  }'ct  a  vast  amount  of  litigation 
arose  from  complications  of  fact  produced  by  the  neglects  of 
themselves  or  their  predecessors  in  title,  by  unbusiness-like 
habits,  by  heedlessness,  or  by  sheer  folly.  The  true  doctrine, 
Mr.  Maine  submitted,  was  that  the  litigants  and  the  general 
tax-payers  should  each  contribute  something.  Nobody  denied 
that  the  litigants  benefited  by  the  courts,  and  nobody  would 
deny  that  the  rest  of  the  community  derived  some  advantage 
from  the  solution  even  of  such  questions  as  those  raised  by 
this  Bengali  gentleman's  w^ill.  What  the  proportion  paid  by 
each  should  be  was  a  question,  not  of  theory,  but  of  experi- 
ence, to  be  equitably  settled  by  the  Government  as  trustee  for 
all,  and  it  was  due  to  the  Commission  of  1867  to  say  that 
they  had  furnished  the  Government  with  much  valuable 
experience  to  work  upon. 


MURDEROUS   OUTRAGES  IN  THE   PANJAB 

March  15,  1867. 

A  SUCCESSION  of  murderous  outrages  committed  by  so-called  Ghazis 
in  certain  districts  of  the  Panjab  made  it  necessary  to  legislate,  first, 
to  provide  a  speedy  mode  of  trying  and  punishing  offences  attri- 
butable to  religious  fanaticism,  and,  secondly,  to  render  attempts  at 
murder,  made  under  the  influence  of  fanaticism,  punishable  with 
death.  Under  the  Indian  Penal  Code  such  attempts  are  punishable 
only  with  transportation. 

Fanatics  murdering  or  attempting  to  murder  are  punished  on 
conviction  either  with  death  or  transportation  for  life,  and  all  their 
property  is  forfeited  to  Government,  and  the  Commissioner  of  the 
Division,  who  as  a  rule  tries  these  cases,  may  adjudge  that  in  the  case 
of  any  fanatic  killed  in  committing  any  murderous  outrage  his  pro- 
perty shall  be  forfeited  and  his  body  burnt.  A  Bill  containing  these 
provisions  was  accordingly  introduced  :  and  in  the  course  of  the  de- 
bate thereon,  Mr.  Maine  said  that  he 

would  move  an  amendment  which  was  not  of  great  import- 
ance, but  which  would  afford  him  an  opportunity  of  describing 
the  character  of  the  measure.  It  did  not  appear  to  have  at- 
tracted much  attention,  but  Mr.  Maine  hoped  that  whatever 


26o  SPEECHES   OF   SIR   HENRY   MAINE 

opinion  had  been  formed  on  it  was  not  reflected  in  the  only- 
criticism  he  had  read.      It  had  been  described  in  this  criticism 
as    an    illustration   of  the  extreme  readiness    of  the    Indian 
Government  to  license  lawlessness.      If  the  precisely  opposite 
character  had  been  attributed  to  it,  and  it  had  been  called  a 
signal  example  of  the  tenderness  of  this  Government  for  law 
and  legality,  the  description  would    have  been    more   correct. 
Who  were  the  persons   to   be  tried   under  the  special  proce- 
dure ?     They  were  persons  who,  under  the  influence  of  frenzy, 
but  of  perfectly  controllable  frenzy,  either  because  they  had 
made  a  vow,  or  supposed  themselves  to  be  discharging  a  duty, 
murdered  others  whom  they  had  never   seen  before,  without 
the  smallest  shadow  of  provocation.     These  murderers   ap- 
peared not  even  to  deserve  that  semblance  of  respect  which 
was  sometimes  given  great  crime.     An  honourable  friend  of 
his,  who  had  served  in  the  Panjab,  had  repeated  to  Mr.  Maine 
a  conversation  with  an  assassin  who  had  been  convicted  of  one 
of  these  fanatical  outrages.     He  was  asked  why,  calling  him- 
self a  man,  he  had  stabbed  his  victim  in  the  back,  and  why  he 
had  not  given  him  a  chance   of  resistance.     The  answer  was 
that   that  would  never  have  done,  because  in  that  case  he 
might  have  been  killed  himself,  whereas  his  object  was  to  kill 
and  not  to  be  killed.     As,  however,  he  had  succeeded,  he  was 
perfectly  willing  that  the  Government  should  hang  him.     Mr. 
Maine  would  take  upon  himself  to  say  that,  if  this  sort  of  out- 
rage had  been  committed  in  the  most  civilised  portions  of  the 
world — let  us  say  in  the  cities  of  London  or  Paris— and  par- 
ticularly if  there  were  any  reason  to  believe   that  the  act  was 
done  upon  a  system,  the  murderer  would  have  run  much  risk 
of  being  torn  in  pieces  by  the  mob.    If  it  had  been  perpetrated 
in  places  distantly  resembling  the   Indus  frontier — as,  for  ex- 
ample, the  more  westerly  States   of  America — the  life  of  the 
assassin  would  not  be  worth  five  minutes'  purchase.      If  it  had 
been  committed  in  any  Asiatic  country — and  he  would    not 
take   a  country  under  an    Asiatic   Government,  but   such   a 
government  as  that  of  the  Dutch  in  Java,  or  of  the  English  in 
Borneo — if  it  were  the  case  (to  take  the  nearest  counterpart) 
of  a  Malay  running  amok — the  murderer  would  have  been 
shot  down  by  the  first  man  with  firearms  in  his  hand  who  met 


MURDEROUS   OUTRAGES    IN    THE    TANJXb  26  F 

him.  These  were  the  persons  whom,  under  the  present  mea- 
sure, it  was  proposed  to  try  by  a  procedure  differing  in  no 
essential  respect  from  that  of  the  ordinary  law,  except  in  the 
excision  of  the  appeal.  The  appeal  was  perfectly  useless, 
inasmuch  as  the  evidence  was  always  of  the  clearest  character, 
and,  indeed,  the  murderer  himself  always  took  care  to  supply 
the  clearest  evidence,  for  he  never  tried  to  escape,  and,  as  in 
the  case  put  by  Mr.  Maine,  was  perfectly  prepared  to  be  hanged. 
It  was  quite  wonderful  that  people  should  not  be  able  to  throw 
themselves  sufficiently  out  of  surrounding  circumstances  to 
see  that  the  measure  was  a  striking  example  of  the  desire  of 
the  Indian  Government  to  impose  legal  order  on  its  officers 
under  the  most  trying  conditions.  As  to  the  discussion  which 
had  taken  place  last  week,  it  was  to  be  observed  that  it  had 
turned  entirely  on  words.  In  the  papers  sent  up  from  the 
Panjab  Government,  the  simple  term  Glidzis  was  used  for  these 
assassins.  I  fit  had  been  employed,  there  would  never  have 
been  a  moment's  doubt  as  to  the  class  intended,  and  the  word 
used  would  have  been  as  clear  as  the  term  JMoplah  used  in  the 
series  of  Acts  which  were  passed  to  put  down  analogous  crimes 
in  Malabar.^  But  this  word  Gliazi  had  been  discarded  for  a 
reason  which  Mr.  Maine  would  venture  to  call  not  discredit- 
able to  that  Council.  While  it  was  well  understood  that  all 
respectable  Muhammadan  subjects  of  Her  Majesty  disclaimed 
sympathy  with  these  murderers,  it  was  felt  that  the  word  Ghd^i 
had  not  yet  quite  lost  its  honorific  sense  in  their  religious  lan- 
guage, and  that  its  employment  as  the  designation  of  a  class 
of  criminals  might  be  deemed  offensive.  The  sole  difficulty, 
therefore,  had  been  created  by  the  necessity  of  finding  an 
equivalent  for  this  term  GJidz*.  The  Select  Committee  had 
substituted  the  expression  '  political  or  religious  fanatic,  who 
murdered  persons  whose  religion  differed  from  that  of  the 
offender.'  The  Lieutenant  Governor  objected  to  the  last  part 
of  the  definition  on  the  ground  that  it  was  undesirable,  where  it 
could  possibly  be  avoided,  to  base  legislation  on  differences  of 
religious  opinion.  Mr.  Maine  had  himself  objected  to  the 
phrase  '  political  fanatic,'  partly  because  he  was  not  sure  what  it 

'  Acts  XXIII.  of  1854,  V.  of  1856,  mother  {ma),  as  sprung  from  the  inler- 
and  XX.  of  1859.  '  Moplah  '  (rectius,  course  of  foreign  colonists,  who  were 
Mappilla),  lit.    the   son  {pilla)   of  his       persons  unknown,  with  Malabar  women. 


262  SPEECHES   OF   SIR    HENRY   MAINE 

meant,  and  partly  because,  if  he  was,  he  hoped  all  the  Council 
were  political  fanatics.  He  would  have  himself  preferred  to 
retain  the  word  '  religious,'  but  now  that  its  omission  had  been 
carried,  Mr.  Maine  did  not  think  that  the  application  of  the 
Bill  was  altered.  The  primary  and  et\'mological  meaning  of 
'  fanatic  '  was  religious  fanatic,  and  though  the  word  was  used  in 
other  senses — as,  for  example,  in  such  expressions  as  fanatic  in 
politics,  or  fanatic  in  art — Mr.  Maine  held  that  the  employment 
was  abusive,  and  only  amounted  to  a  metaphorical  or  analogical 
extension  of  the  meaning  of  the  word.  Hence  Mr.  Maine 
thought  that  there  must  be  some  ingredient  of  religion  in  the 
frenzy  of  an  assassin  who  was  brought  under  this  measure.  As 
regarded  his  amendment,  its  object  was  this.  In  his  opinion  the 
appeal  was  quite  idle,  only  necessitating  the  carriage  of  a  mass 
of  papers  over  some  hundreds  of  miles  of  impracticable  coun- 
try, and  thus  causing  a  delay  which  was  fatal  to  the  prompt 
example  which  it  was  necessary  to  make  for  the  sake  of  deter- 
ring future  crime,  and  of  affording  security  for  life  and  limb  to 
the  officers  employed  on  the  border.  But  though  the  appeal 
would  have  been  a  useless  addition  to  the  careful  procedure  of 
this  Bill,  the  judgment  of  the  Chief  Court  in  deciding  the  appeal 
might  not  have  been  without  value.  The  guidance  which  such 
judgment  might  have  given  to  officers  on  the  frontier,  Mr. 
Maine  proposed  to  give  by  circular  orders. 

Mr.  Maine  then  moved  the  following  amendment  : — 

'  With  the  previous  consent  of  the  said  Lieutenant  Governor,  but 
not  otherwise,  the  said  Chief  Court  may  from  time  to  time  make  and 
issue  circular  orders  for  the  guidance  of  officers  in  cases  under  this 
Act,  provided  that  such  orders  are  consistent  with  the  provisions 
herein  contained.  All  such  orders  shall  be  published  in  the  official 
Gazette,  and  shall  be  obeyed  by  the  officers  aforesaid.' 

The  amendment  was  carried,  and  the  Bill  became  law  as  Act  XXIII. 
of  1867,  a  temporary  measure,  which  expired  in  1S77,  but  was  revived 
and  amended  by  Act  IX.  of  1877. 


INDIAN    MUNICIPALITIES  263 

INDIAN  MUNICIPALITIES 

March  13,  1S68. 

The  following  speech  was  delivered  in  the  course  of  the  debate  on  a 
Bill  which-became  law  as  Act  VI.  of  1868,  to  make  better pr<roision 
for  the  appointment  of  municipal  committees  in  the  North-  IVestern 
Provinces,  and  for  other  purposes.  Mr.  Shaw  Stewart  having  pro- 
posed an  amendment  which  would,  in  two  years  after  appointing  a 
municipal  committee,  have  made  the  system  of  nominating  the  com- 
missioners^entirely  one  of  election,  Mr.  Maine  observed  that 

he  was^  not  in  India  when  the  Select  Committee  came 
to  a  decision  adverse  to  the  principle  of  his  honourable 
friend's  amendments.  He  was  therefore  desirous  to  state 
the  reasons' which  had  led  him,  independently,  to  the  same 
conclusions  as  the  Committee.  When  the  Bill  was  originally 
submitted  to  the  Council,  there  appeared  to  have  been  a 
certain  lack  of  information  ;  but  there  had  subsequently 
come  a  memorandum  from  the  North-Western  Provinces, 
which  Mr.  Maine  did  not  think  had  been  mis-described 
by  his  honourable  friend  Mr.  Brandreth  as  excellent.  In 
that  memorandum  there  was  used  a  term  which  had  become 
of  late  politically"  famous — 'educate.'  It  was  said  to  be  the 
object  of  the  Lieutenant  Governor  of  the  North-Western 
Provinces  to  educate  the  Natives  of  that  part  of  India  for 
municipal  institutions.  The  view  did  not  seem  to  differ  from 
that  which  appeared  to  have  been  recently  expressed  in  that 
room  by  His  Excellency  the  Governor  General.  The  Natives 
of  India  cared  little  antecedently  for  the  objects  sought  to  be 
obtained  by  municipal  institutions  ;  but  after  being  for  a  time 
accustomed  to  cleanliness  and  decency^,  it  was  alleged  that 
they  began  to  appreciate  them,  and  the  improvement  in  the 
public  health  which  was  their  result,  and  that  in  the  end  they 
would  even  co-operate  in  giving  effect  to  sanitary  measures. 
Now,  the  true  effect  of  the  amendments  proposed  by  his 
honourable  friend  Mr.  Shaw  Stewart  was  to  fix  an  arbitrary 
period  within  which  this  education  was  to  be  completed.  As 
Mr.  Maine  read  the  amendments,  they  proceeded  on  the 
assumption  that  all  municipalities  in  the  North-West  would  in 


264  SPEECHES   OF   SIR   HENRY   MAINE 

two  years  at  most  be  prepared  for  municipal  institutions,  and 
beyond  this,  that  the  Municipal  Committees  would  be  prepared 
to  lay  the  foundations  for  a  system  of  popular  self-government. 
Now,  speaking  as  an  English  Member  of  Council,  he  must 
say  that  it  was  surprising  that  the  Natives  of  India  should  be 
fit  for  municipal  government  at  all.     While  municipal  insti- 
tutions on  the  European  model  were  here  of  recent  date,  they 
had  had  in  Europe  an  almost  unbroken  history  of  two  thou- 
sand years,  and  yet   those  who    most   recognised  their   ad- 
vantages could  not  help  confessing  that  they  were  compen- 
sated by  many  disadvantages    and    drawbacks.     Sometimes 
municipalities  were  corrupt :  sometimes  they  were  guilty  of 
petty  tyranny  :  sometimes  they  erred  on  the  side  of  extrava- 
gance :  sometimes  on  that  of  parsimony.     It  was  impossible 
not    to    see  that,  even  in  England,  where  there  was    a  dis- 
position to  give  them  the  fairest  trial,  the  Acts   called  the 
Local  Government  Acts,  which  had  given  extension  to  the 
area  of  self-government  on  one  side,  had  greatly  controlled 
and  limited  it  on  the  other.     As,  then,  all  the  temptations  and 
misleading  influences    which    produced  the    occasional    mis- 
carriage of  municipal  institutions  in  England  operated  with 
far  greater  force  in  this  country,  it  was  matter  of  surprise  that 
those  institutions  could  be  established  here  with  useful  result. 
As,  however,  gentlemen  of  great    local    experience   assured 
Mr.  Maine  that  it  was  possible  here  to  have  municipal  in- 
stitutions with  no  more  than  a  reasonable  amount  of  corruption 
and  mismanagement,  he  of   course  bowed  to  their  opinion. 
But  if   it  was    surprising  that  municipal  institutions  should 
flourish  at  all  in  this  country,  still  more  wonderful  was  it  that 
they  should  in  any  case  be  based  on  a  system  of  popular  re- 
presentation.    Surely  this,  at  all  events,  might  be  asserted  on 
the  strength  of  English  experience — that  it  was  a  most  difficult, 
if  not  an  insoluble  problem,  to  create  a  constituency  or  set  of 
constituencies  in  which  one  class  should  not  have  the  power 
to  oppress  the  others,  or  to  protect  itself  at  their  expense. 
Considering  how  Native  society  was  divided  into  castes,  and 
sects,  and  religions,  and  races,  it  was  surprising  that  there- 
should    be    practicable,    anywhere,    a    system    of    municipal 
election  at  once  fair  and  free.     As,  however,  Mr.  Maine  found 


INDIAN    MUNICIPALITIES  265 

such  passages  as  the  following  in  the  memorandum  from  the 
North-West,  he  was  bound  to  attach  weight  to  them  : — 

'Towns  like  Bolundshuhur,  Meerut,  Banda,  Allahabad,  and 
others  have  been  divided  into  wards,  each  returning  its  member  or 
members  annually,  and  the  qualifications  of  membership  and  of 
the  electoral  franchise  have  been  defined,  and  in  every  sense  the 
Committee  is  a  representative  one,  freely  selected.' 

Whether  the  s  at  the  beginning  of  'selected'  was  a 
clerical  error,  or  a  stroke  of  irony,  Mr.  Maine  could  not  say  ; 
but  assuming  that  the  meaning  was  that  there  was  free  election 
in  these  North- Western  cities,  he  could  only  believe  it,  though 
his  faith  was  feeble.  When,  however,  his  honourable  friend 
Mr.  Shaw  Stewart  came  and  told  them  that  there  was  no 
Native  city  in  India,  however  divided  and  however  dirty,  in 
which  the  materials  for  founding  within  two  years  a  system 
of  popular  election  did  not  exist,  Mr.  Maine  must  say  he 
began  to  doubt.  His  honourable  friend  had,  in  fact,  concealed 
from  himself  the  magnitude  of  his  proposal  by  throwing  off 
the  burden  of  solving  the  problem  on  other  persons.  Clause 
I  of  section  7  of  the  amendments  ran  as  follows  : — 

'  As  soon  as  practicable  after  their  appointment,  the  Committee 
shall  prepare  and  submit,  for  the  sanction  of  the  Lieutenant  Go- 
vernor, rules  for  the  biennial  elections  of  Municipal  Commissioners 
in  the  place  of  those  who  retire  in  rotation,  and  such  rules,  when 
sanctioned  by  the  Lieutenant  Governor,  shall  remain  in  force  until 
altered  or  amended  by  the  Municipal  Commissioners  with  the  sanction 
aforesaid.' 

Wliat  was  the  exact  system  which  his  honourable  friend 
contemplated  did  not  appear  clear  to  Mr.  Maine.  His 
honourable  friend's  language  left  it  doubtful  whether  he  had 
in  view  a  system  of  universal  suffrage,  or  a  system  of  rotten 
boroughs.  But  at  all  events  it  was  to  be  taken  for  granted 
that,  in  all  Indian  cities,  there  was  a  number  of  intelligent 
Natives  who  were  capable  of  solving  the  problem  which  had 
perplexed  the  British  Parliament  for  thirty  years.  It  was  true 
that,  under  clause  4,  the  Lieutenant  Governor  might  reject 
these  rules.  But  let  the  Council  see  what  might  occur. 
Mr.  Maine  knew  little  personally  of  the  North-West  ;  but  he 
did  know  that,  in  some  of  the  North-Western  cities,  Hindus 


266  SPEECHES   OF   SIR    HENRY   MAINE 

and  INIuhammadans  were  mixed  together,  and  it  was  all  that 
the  administrative  skill  and  vigour  of  English  officials  could 
do  to  keep  peace  between  them.  Now,  suppose  the  Lieu- 
tenant Governor  had  appointed  originally,  under  the  pro- 
visions of  his  honourable  friend's  amendments,  a  committee 
of  respectable  gentlemen  who  were  all  or  mostly  Hindus,  and 
suppose  that  they  had  submitted  a  set  of  rules  which  would 
have  the  effect  of  entirely  excluding  the  Muhammadans.  The 
Lieutenant  Governor  would  reject  these,  and  would  record  his 
reasons  for  so  doing.  But  they  might  be  perpetually  re-sub- 
mitted by  the  Committee,  which  would  soon  learn  its  advan- 
tage. Surely  it  would  be  seen  that  this  perpetual  submis- 
sion and  rejection  might  cause  a  chronic  irritation  and  fret 
which  would  constitute  a  grave  political  danger.  What  the 
opinions  of  the  late  Lieutenant  Governor  of  the  North-West 
were  (and  they  were  shared  by  the  present  Lieutenant 
Governor),  would  be  seen  by  the  passage  which  he  would 
quote  : — 

'  There  are  towns  in  which  the  system  of  a  popular  election  would 
not  conduce  to  good  government.  Either  the  number  of  citizens 
who,  by  their  intelligence  and  public  spirit,  are  capable  of  serving  is 
so  limited  that  there  is  little  room  for  selection  if  a  working  com- 
mittee is  to  be  had,  or  those  whose  influence  must  be  respected 
would  not  act  with  persons  chosen  indifferently.  Especially  is  it 
necessary  on  the  first  introduction  of  a  system  to  conciliate  those 
who  are  the  leaders  of  society,  and  to  use  only  the  material  which,  by 
education  and  natural  ability,  is  most  fitted  to  perform  the  duties  of 
the  post.  It  is  only  to  the  care  in  attending  to  this  that,  in  not  a 
few  instances,  the  success  in  the  working  of  the  Act  is  due.  Very 
recently,  when  the  Act  was  introduced  into  the  important  town  of 
Benares,  the  Lieutenant  Governor  was  anxious  that  at  least  a  portion 
of  the  committee  should  be  elected  by  the  citizens,  and  suggested 
this  to  the  committee  of  the  leading  residents  appointed  to  draw  up 
the  rules,  but  the  proposal  did  not  meet  with  a  favourable  reception. 
Those  Native  gentlemen  who  were  unquestionably  the  mosc  public- 
spirited  and  intelligent  in  that  large  town  thought  that  it  would  be 
unwise  to  introduce  such  a  system  until  the  Act  had  been  in  operation 
for  some  time,  and  its  objects  and  the  duties  of  the  committee  were 
better  understood.  The  Lieutenant  Governor,  convinced  that  they 
were  themselves  the  best  judges  on  this  point,  consented  to  the  post- 
ponement. Ultimately,  even  if  the  present  Act  remains  in  force,  the 
rules  now  in  force  there  will  be  popularised  as  they  have  been  else- 


INDIAN    MUNICIPALITIF.S  267 

where.  Had  the  Act  rigidly  prescribed  that  only  by  election  shall 
the  committee  be  chosen,  it  is  not  rash  to  assert  that  the  result 
would  often  have  been  failure,  not  success.  It  is  the  interest  of 
■Government  that  the  system  shall  work  smoothly.  There  is  no 
desire  to  force  improvements  rapidly  on  the  people  against  their  will. 
Undue  haste  would  defeat  the  wishes  of  the  Government,  but  as  the 
people  understand  and  appreciate  the  system  of  municipal  govern- 
ment, and  are  fitted  intelligently  to  take  their  part  in  it,  their  privi- 
leges have  been  and  will  be  enlarged.  It  is  not  to  be  expected  that 
the  citizens  can  at  one  bound  pass  from  the  position  of  utter  power- 
lessness  to  the  enjoyment  of  the  fullest  freedom  as  commissioners 
or  electors.  Their  powers  must  be  increased  gradually.  By  exer- 
cising a  little,  they  become  fitted  to  exercise  larger  powers,  and  the 
Government,  assured  of  their  fitness,  will  not  be  slow  to  enlarge  them.' 

Was,  then,  the  Council  going  to  force  on  the  Lieutenant 
Governor  of  the  North-Western  Provinces  a  system  of  which 
he  did  not  approve  .''  This  was  a  particularly  strong  case. 
The  only  members  of  the  select  committee  who  had  differed 
from  its  conclusions  were  his  honourable  friends  Mr.  Shaw 
Stewart  and  Mr.  Minchin,  who  represented  (if  it  was  proper 
to  use  the  word)  Bombay  and  Madras.  Mr.  Maine  did  not 
in  the  least  doubt  that,  in  alleging  the  general  practicability 
of  a  system  of  popular  election,  they  stated  no  more  than 
their  personal  experience  in  the  Southern  and  Western  Pre- 
sidencies warranted.  Now,  when  this  Council  was  enacting 
a  law  for  all  India,  it  was  sometimes  inevitable  that  they 
should  apply  to  parts  of  the  country  principles  which  had 
been  more  thoroughly  tested  in  other  provinces.  But  this 
Bill  would  affect  only  the  North-West.  The  Council  was  in 
'fact  sitting  as  the  local  legislature  of  the  North-Western  Pro- 
vinces. If  the  theory  of  the  Indian  Councils  Act  were  fully 
carried  out,  there  would  be  a  local  Council  for  those  Provinces, 
within  whose  strict  competence  the  present  Bill  would  have 
fallen.  It  was  only  through  an  accident  that  the  Supreme 
Council  assumed  jurisdiction  over  the  Bill.  Would,  then,  the 
Council  make  itself  the  instrument  or  agency  for  forcing  on 
the  North-West  the  results  of  Madras  and  Bombay  experience  ? 
If  they  were  sitting  at  Agra  or  Allahabad,  and  the  Lieutenant 
Governor  of  the  North-West,  occujn'ing  the  chair  now  occu- 
pied by  his  Honour  the  Lieutenant  Governor  of  Bengal,  were 


268  SPEECHES   OF   SIR   IIENRV   MAINE 

to  say  (as  in  effect  they  knew  he  would  say)  that  the  scheme  of 
his  honourable  friend  was  dangerous  or  impracticable,  Mr.  Maine 
felt  sure  that  it  would  be  at  once  pronounced  inadmissible. 

PANJAB    TENANCY 

October  19,  1868. 

The  following  important  speech  was  delivered  during  the  considera- 
tion of  the  final  report  of  the  Select  Committee  on  a  Bill  then  in 
charge  of  Sir  Richard  Temple,  to  define  and  amend  the  law  relating 
to  the  tenancy  of  land  in  the  Panjab,  which  became  law  as  Act 
XXVIII.  of  1868.  The  necessity  for  legislation  arose  from  the  great 
discrepancy  of  the  views  of  the  status  of  the  cultivator  entertained  by 
different  sets  of  Panjabi  settlement-officers,  and  from  a  decision  of  the 
Chief  Court  of  the  province  condemning  the  procedure  adopted  by 
some  of  these  officers.  The  Act  was  somewhat  in  the  nature  of  a  com- 
promise ;  but  it  remained  in  force  for  nineteen  years,  when  it  was 
superseded  by  Act  XVI.  of  1887,  the  present  law  on  the  subject. • 

Sir,  there  is  much  in  the  Bill  of  my  honourable  friend 
on  which  it  will  be  safe  for  one  who  has  not  passed  the 
greatest  part  of  his  life  in  India  to  abstain  from  pronouncing 
positively ;  but  some  questions  of  principle  are  raised  by 
it  on  which  I  may  be  entitled  to  have  an  opinion.  The 
\-iews  which  I  have  formed  on  them  (which  happen  for  the 
moment  not  to  be  popular  views)  I  am  the  more  anxious 
to  state  because,  though  the  subject-matter  of  the  measure 
has  undergone  much  public  discussion,  I  do  not  think 
justice  has  been  done  to  the  side  of  the  questions  in- 
volved to  which  I  am  compelled  to  incline.  Before,  however^ 
I  come  to  the  merits  of  the  Bill,  it  is  perhaps  proper  I  should 
say  something  on  a  point  which  was  much  discussed  when 
the  Bill,  then  in  Mr.  Brandreth's  charge,  came  before  your 
Excellency's  Council.  I  was  not  in  India  at  the  time  ;  but  I 
see  that  several  Members  of  the  Legislature  expressed  doubts 
whether  any  legislation  at  all  was  required,  and  whether  the 
law,  as  applied  by  the  settlement  officers  and  civil  courts  of 
the  Panjab,  should  not  be  suffered  to  take  its  course.  The 
facts  of  the  case  are  now  much  more  clearly  known.  We  have 
not  before  us  the  statistics  of  the  recent  settlement  for  the 

'  See  as  to  the  two  Acts,  Mr.  Baden-PoweH's  Land-Systems  of  British  India, 
vol.  ii.,  pp.  709-721. 


PANJAB    TENANCY  269 

whole  province,  but  we  have  them  for  one  dix'ision.     It  aj)pcar.s 
that  in  the  single  division  of  Amritsar  60,000  heads  of  liousc- 
holds  were  recorded  at  the  first  settlement  of  the  Panjab  as 
entitled  to  beneficial  rights  of  occupancy.    At  the  recent  settle- 
ment, 46,000  of  these  cultivators  have  been   degraded  to  the 
status  of  tenants-at-will.      If  the  same  proportions  be  main- 
tained   for  the   whole  province,  these   numbers  denote   some 
hundreds   of  thousands.      It  would   appear,  however,  from  a 
minute  of  the  Chief  Court  of  the  Panjab,  that,  though  the  set- 
tlement officers  employed  the  settlement  regulation  of  1822  ' 
to  produce  these  formidable  results,  they  did  not  think  fit  to 
follow  the  prescribed  procedure,  but  have  adopted  a  procedure 
of  their  own,  unknown  to  the  law.     The  Chief  Court  states 
accordingly  that  all  the  settlement  operations  have  effected  is 
a  '  superior  description  of  registration.'    But  that  is  not  all.    It 
seems  that  the  settlement-officers,  from  compassion  or  com- 
punction, did  not  in  all  cases  degrade  the  occupancy-tenant  at 
once  to  a  tenancy-at-will.    They  allowed  him  a  period  of  grace, 
during  which  he  was  to  retain  his  rights  of  occupancy.     The 
Chief  Court  has  decided  that  they  had  no  power  to  do  anything 
of  the  kind,  and  that  in  such  cases  the  higher  status  must  con- 
tinue indefinitely.     Sir,  I  observe  with  regret  that,  during  the 
sittings  of  the  gentlemen  who  recently  assembled   at   Marri 
to  consider  the  amended    Bill,  an  attempt  was   made   to  get 
some  words  introduced  into  it  reflecting  on  this  decision  of  the 
Chief  Court.     I  do  not  suppo.se  that  an}'thing  I  may  say  can 
add  authority  to  the  Court's  opinion,  but  still  I  am  bound  to 
state  that  it  appears  to  me — and  what  is  more  important,  I 
believe  it  appears  to  your  Excellency — that  the  Chief  Court  was 
entirely  and  obviously  in  the  right,  and  that  the  functions  of 
a  settlement  officer  are  confined  to  declaring  the  class  of  tenure 
to  which  the  holding  of  each  cultivator  belongs.    This  decision 
of  the  Chief  Court,  however,  in  Amritsar  alone,  affects  no  less 
than  22,000  cases.     In  one  division,  there  have  been  46,000 
rulings  on  rights  of  land,  of  which  22,000  are  bad  in  law.     We 
are  threatened  with  an  agrarian  revolution,  to  be  immediately 
followed  by  an  agrarian  counter-revolution.      In  such   a  state 
of  things,  it  is  probably  superfluous  for  me  to  argue  on   the 
'  The  Benral  Rcijulation  VII.  of  1S22. 


270  SPEECHES   OF   SIR    HENRY   MAINE 

necessity  for  legislation,  and  indeed  I  greatly  lament  that 
the  course  of  circumstances  has  prevented  your  Excellency's 
Government  from  stepping  in  earlier,  and  with  a  high  hand 
forcing  a  compromise  on  the  official  disputants  in  the  Panjab. 
And  now,  sir,  as  to  the  Bill  before  the  Council.  I  do  not 
mean  to  oppose  it.  Indeed,  as  a  member  of  the  committee  I 
have  joined  unreservedly  in  the  recommendation  that  it  be 
passed.  But  the  chief  ground  on  which  I  support  it  is  that 
affairs  in  the  Panjab  have  come  to  such  a  pass  that  no 
arrangement  of  the  matters  in  dispute  is  now  prudent  or 
politic,  except  one  in  the  nature  of  a  compromise.  The  con- 
troversy between  the  officials  has  extended  to  the  Natives  : 
the  fears  of  one  class  and  the  expectations  of  another  have 
been  roused  ;  and  it  thus  becomes  imperative  on  the  Govern- 
ment of  India  to  avert  great  political  evils  b}'  taking  a  decided 
course  and  effecting  a  settlement  intermediate  between  extreme 
views.  I  further  refrain  from  placing  any  impediment  in  the 
way  of  the  Bill,  because  your  Excellency,  who  certainly  cannot 
be  accused  of  any  fanatical  dislike  of  tenant-right,  does  not 
think  that  the  measure  as  now  settled  by  the  Select  Committee 
will  inflict  intolerable  hardship  on  the  large  class  it  will  affect. 
But,  sir,  I  am  bound  to  say  that  but  for  this  feeling  on  your 
^Excellency's  part,  and  but  for  my  conviction  that  nothing  but 
a  compromise  of  some  sort  is  now  admissible,  I  should  have 
the  gravest  doubts  of  the  wisdom,  fairness,  and  expediency  of 
the  Bill.  I  should  doubt  whether  it  did  not  go  much  too  far 
in  countenancing  proceedings  which  seem  to  me  to  exhibit 
characteristics  rarely  found  together  in  India,  and  to  combine 
an  attack  on  tenant-right  with  an  attack  on  the  stability  of  the 
rights  of  propert}'.  Let  me  say,  however,  that  I  do  not  think 
that,  properly  speaking,  the  Bill  raises  the  question  of  the  ex- 
pediency of  tenant-right.  I  can  quite  understand  two  opinions 
being  held  as  to  the  well-known  rule  of  Act  X.  of  1859,  under 
which  there  is  a  perpetual  creation  of  new  tenant-rights.  I 
can  understand  two  opinions  on  the  question  of  tenant-right 
as  it  presents  itself  in  Ireland,  and  as  it  presented  itself  three 
years  since  in  Oudh.  But  when  tenant-right  has  once  existed 
for  a  definite  period  of  years,  when  it  has  been  protected  by 
Government  and   law,  and   when  it  has  become  vested  in  spe- 


PANJAD   T]:\AXCV  27 1 

cific  individuals,  it  appears  to  mc  just  as  much  descning^ 
of  respect  as  any  other  form  of  propert}-.  All  question  of 
its  expediency  disappears,  and  the  principles  of  justice  and 
statesmanship  no  more  admit  of  its  violent  destruction  than 
they  do  of  the  confiscation  of  copyholds. 

Sir,  in  order  to  explain  the  grounds  on  which  I  should  dis- 
pute the  equity  and  common  fairness  of  this  l^ill,  if  I  thought 
the  question  open  to  any  arrangement  except  one  of  the  sort 
which  it  proposes,  I  must  repeat  those  amazing  figures  which 
I  read  to  the  Council  a  few  moments  ago.  At  the  first  settle- 
ment of  the  Panjab,  60,000  heads  of  agricultural  households 
were  in  the  single  division  of  Amritsar  recorded  as  having 
beneficial  rights  of  occupancy  in  their  holdings.  At  the  pre- 
sent settlement,  46,000  of  these  occupancy-tenants  have  been 
degraded  to  the  position  of  tenants-at-will,  liable  to  eviction 
and  rack-rent.  Sir,  the  exact  economical  position  of  the  ryot 
whose  tenure  is  one  of  occupancy  I  take  to  be  this.  He  can- 
not be  evicted  except  on  certain  conditions,  and  the  profits  of 
the  cultivation  of  the  soil  (independently  of  the  share  of  those 
profits  taken  by  the  Government  as  revenue,  and  indepen- 
dently of  the  portion  which  represents  the  cost  of  tillage,  and 
of  the  cultivators'  subsistence,  and  the  interest  of  whatever 
capital  he  may  have  embarked)  are  divided  under  varying 
rules  of  law  between  the  occupancy-tenant  and  the  landlord, 
instead  of  going  wholly  to  the  landlord,  as  in  the  case  of  a 
tcnant-at-will.  This  being  so,  I  have  always  held  the  opinion 
attributed  to  mc  at  a  recent  sitting  of  this  Council  by  my 
honourable  friend  Mr.  Strachey,  that,  in  strictness  of  language, 
the  occupancy-tenant  is  a  co-proprietor  with  the  landlord. 
Rights  over  land  or  an}'  valuable  commodity  arc  either  rights 
arising  out  of  contract  or  proprietary  rights.  This  distribution 
of  rights  is  considered  b)-  the  best  jurists  as  exhaustive  ;  if, 
then,  the  occupancy-ryot  does  not  hold  (and  it  is  clear  he  docs 
not  hold)  under  contract,  it  follows  that  he  has  some  sort  of 
right  of  property  in  the  land.  There  has,  therefore,  been  in 
the  district  of  Amritsar  an  attempt  at  a  clear  confiscation  of 
property  to  the  extent  indicated  by  46,000  heads  of  agricul- 
tural households.  These  46,000  persons  are,  it  is  proposed, 
to  be  placed  in  the  same  condition  as  if  the}'  had  mcrel>-  con- 


272  SPEECHES   OF   SIR    HENRY   MAINE 

tracted  for  the  use  of  the  land.  Not  only  that.  A  contract 
may  be  highly  beneficial  ;  but  the  contract  under  which  these 
ex-proprietors  are  to  hold,  either  at  once  or  ultimately,  is  the 
least  beneficial  of  all  contracts  connected  with  land — a  ten- 
ancy-at-will  and  at  a  rack-rent.  If  the  settlement  officers  of 
the  Panjab  are  allowed  to  have  their  way — and  in  order  to 
have  their  way  they  have  left  no  stone  unturned  which  an 
Indian  functionary  can  move — these  46,000  households  will  be 
completely  dependent  on  the  will  and  pleasure  of  others  for  the 
liberty  of  remaining  on  the  land,  and  will  pay  for  that  liberty 
exactly  what  those  others  choose  to  demand.  And,  taking 
the  whole  province,  there  must  be  hundreds  of  thousands  of  cul- 
tivators whose  proprietary  status  has  been  similarly  degraded. 
Now  let  me  trace  the  history  of  those  advantages  of  tenure 
of  which  it  is  proposed  to  deprive  these  unhappy  persons. 
First,  what  has  been  the  duration  of  their  beneficial  enjoy- 
ment .-*  Fifteen  years  is  a  fair  average  time  to  assume  for  the 
duration  of  the  first  settlement,  though  in  some  parts  it  has 
lasted  considerably  longer.  It  is  conceded — and  this  is  the 
very  ground  of  objection  to  the  first  settlement — that  the  status 
then  recorded  corresponded  with  the  actual  facts  as  they  ex- 
isted for  at  least  twelve  years  preceding.  It  is,  therefore,  a 
beneficial  enjoyment  and  possession  of  at  least  a  quarter  of  a 
century,  and  probably  of  a  far  longer  period,  which  it  is  now 
sought  to  disturb.  But  that  is  not  all.  Sir,  I  say  that  for  the 
last  fifteen  years  these  rights  have  been  enjoyed  under  a  dis- 
tinct protection  and  guarantee  of  permanency  by  the  British 
Government.  I  commend  to  the  attentive  consideration  of 
the  Council  the  earlier  part  of  the  valuable  minute  of  the  Chief 
Court.  It  is  there  shown  that  at  the  first  settlement  of  the 
Panjab  the  officers  employed  did  not  merely,  as  in  older  Indian 
settlements,  construct  a  record  which  was  only  3.  prima  fade 
description  of  the  rights  therein  described.  The  Panjab  officers 
were  invested  with  judicial  powers,  and  the  civil  courts  were 
carefully  excluded  from  interference  with  their  decisions,  which 
when  given  on  merits  became  the  decisions  of  Judges.  Of 
course  I  do  not  mean  to  say  that  they  adjudicated  in  every 
case.  No  court  of  justice  ever  adjudicates  in  more  than  the 
minutest  fraction  of  the  cases  really,  though  indirectly,  affected 


panjXb  tenancy  273 

by  its  jurisdiction.  But  it  is  clear  that  everybody,  landlord  or 
tenant,  had  an  opportunity  of  coming  forward  to  assert  his 
rights  in  litigious  form,  and  had  power  to  appeal  from  deci- 
sions which  he  thought  inequitable,  and  every  decision  of  the 
settlement  courts  must  have  indirectly  disposed  of  thousands 
of  cases  not  actually  brought  before  them.  I  can  scarcely 
conceive  any  stronger  guarantee  given  to  these  rights.  A 
parliamentary  title  to  property  is  necessarily  somewhat  arbi- 
trary ;  but  when  a  Government  sets  its  courts  of  justice  in 
motion  for  the  affirmation  of  rights,  bringing  them  to  the  very 
doors  of  claimants  and  opponents,  it  gives  a  moral  guarantee 
of  the  highest  order.  These  tenants,  therefore,  sir,  have  been 
in  possession  for  at  least  twenty-seven  years,  and  for  fifteen 
years  of  that  time  have  enjoyed  their  rights  under  the  protec- 
tion, not  only  of  the  British  Government,  but  of  British  courts 
of  justice.  Let  me  now  ask  whether  they  are  an  idle  and 
thriftless  class,  whom  it  is  expedient  to  improve  off  the  face 
of  the  earth.  Sir,  the  evidence  to  the  contrary  which  has  been 
laid  before  me  is  truly  astonishing.  I  have  been  told  of  parts 
of  the  Panjab  which  were  little  better  than  a  wilderness  before 
annexation,  and  which  now  bloom  like  a  garden,  mainly  through 
the  industry  of  these  tenants.  I  have  heard  of  villages  volun- 
tarily paying  more  for  the  mere  rent  of  irrigation-water  than 
the  whole  amount  of  revenue  which,  at  the  time  of  annexation, 
it  was  thought  fair  to  demand  from  them  on  the  part  of  the 
Government.  Sir,  I  do  not  adduce  the  proved  laboriousness 
of  these  cultivators  simply  by  way  of  appeal  to  compassion. 
It  constitutes  my  main  answer  to  the  proposition  so  often  oc- 
curring in  these  papers  that  '  it  was  the  British  Government 
which  introduced  rights  of  occupancy  into  the  Panjab.'  I  do 
not  believe  the  statement,  and  I  see  that  the  most  violent 
partisans  of  the  theory  have  now  been  compelled  to  relinquish 
it,  for  after  the  most  stringent  revision  of  the  Amritsar  settle- 
ment 15,000  occupancy-tenants  remain  on  the  record,  which 
is  a  conclusive  admission  of  the  existence  of  the  tenure  before 
the  conquest.  But  suppose  the  statement  to  be  true.  Why 
should  not  the  British  Government,  under  the  peculiar  circum- 
stances of  the  Panjab,  establish  rights  of  occupancy  in  the 
tenants  whom  it  found  in  the  province  at  annexation  ?     Who 


274  SPEECHES   OF   SIR   HENRY   MAINE 

is  it  that  has  created  in  the  Panjab  the  rent  of  land,  and  its 
value  for  sale  or  letting,  which  were  practically  unknown  there 
under  Native  rule?  It  is  partly  the  British  Government  by 
the  peace  and  security  which  it  has  established — partly  the 
cultivators  by  their  industry.  Why  should  the  British  Govern- 
ment not  give  some  degree  of  protection  to  one  large  section 
of  the  class  which,  jointly  with  that  Government,  has  produced 
all  this  wonderful  prosperity  ?  Why  should  it,  on  any  prin- 
ciple of  justice,  be  bound  to  place  these  tenant-cultivators 
suddenly  at  the  mercy  of  anybody  who  can  make  a  claim  to 
those  faint,  vague,  and  shifting  proprietary  rights  which  by 
general  admission  alone  existed  before  the  annexation  ? 

Sir,  the  proposal  deliberately  made  to  us  by  one  numerous 
and  energetic  section  of  the  Panjab  officials  is  to  confiscate, 
either  immediately  or  after  a  short  interval,  the  beneficial  rights 
of  hundreds  of  thousands  of  households,  guaranteed  as  I  have 
described,  vested  in  the  class  I  have  described,  and  gained  at 
the  expense  of  nobody.  But  what  are  we  to  say  of  derivative 
rights  which  in  fifteen  or  twenty  years  have  probably  flowed 
from  the  original  rights  in  the  course  of  the  ordinary  transac- 
tions of  life  ?  As  there  has  alwa)-s  been  a  doubt  whether  occu- 
pancy-tenures were  alienable,  they  have  probably  not  been 
parted  with  in  any  number,  but  money-lending  is  active  in 
every  corner  of  India,  and  undoubtedly  these  tenures  have 
been  the  security,  direct  or  indirect,  for  considerable  advances 
of  money.  They  may  not  have  been  expressly  mortgaged  ; 
but  I  find  from  the  papers  of  the  Orissa  Famine  Commis- 
sioners that  even  in  the  most  difficult  times  an  occupancy- 
tenant  can  obtain  an  advance  when  a  tenant-at-will  can  get 
none.  What  is  to  become  of  the  security  for  such  advances  ? 
It  is  apparentl}'  to  be  destroyed,  together  with  the  original 
rights. 

Sir,  I  am  bound  to  say — remembering  always  that  I  speak 
from  an  English  lawyer's  point  of  view,  and  subject  to  the  re- 
servation implied  in  my  comparative  ignorance  of  the  neces- 
sary conditions  of  administration — I  am  bound  to  say  that, 
when  these  proposals  first  became  known  to  me,  they  struck 
me  as  really  monstrous.  Yet  things  prima  facie  monstrous 
may  turn  out  simple  and  natural,  but  we  may  at  least  expect 


TAN JAR    TENANCY  275 

that  a  strong  defence  will  be  made  for  them.  What  defence 
is  made  here  ?  The  chief,  it  may  be  said  the  only,  reason  as- 
signed for  such  proposals  is  that  mistakes  were  made  at  the 
first  settlement,  and  that  cultivators  were  recorded  as  having 
a  right  of  occupancy  to  whom  tlie  custom  of  the  country  did 
not  attribute  an)-  such  right.  It  will  be  inferred  from  what  I 
have  said  that  I  decline  to  regard  this  as  in  any  respect  an 
answer  to  the  tenants'  claim.  The  true  question  is  whether 
the  title  of  the  occupancy-ryots  is  not  of  such  a  character  that 
it  ought  to  prevail,  even  though  it  began  in  mistake — nay, 
even  though  it  began,  like  many  of  the  Taluqdari  tenures  of 
Oudh,  in  simple  violence.  I  consider,  therefore,  the  allegation 
that  mistakes  were  made  as  raising  an  immaterial  issue.  But 
as  many  estimable  persons  do  seem  to  attach  some  degree  of 
importance  to  the  assertion,  I  may  be  permitted  to  inquire 
briefly  on  what  foundation  it  rests.  And  here,  sir,  let  me  say 
it  was  a  piece  of  great  good  fortune  for  this  Council  that  m\' 
honourable  friend  Sir  R.  Temple  joined  us  at  the  particular 
juncture  in  the  history  of  this  measure  at  which  he  took  his 
seat.  The  impugners  of  the  accuracy  of  the  first  settlement 
were  very  clamorous  and  positive  ;  its  defenders  gave,  it  seemed 
to  me,  but  an  uncertain  sound.  But  my  honourable  friend, 
who  had  an  intimate  connection  with  this  settlement — which, 
I  believe,  most  of  its  present  critics  know  only  by  tradition — 
who  in  the  Central  Provinces  has  had  proceeding  under  his  eye 
a  settlement  conducted  on  precisely  the  same  principles,  was 
able  to  assure  us  that  the  imputation  of  carelessness  or  em- 
pirical precipitation  was  absolutely  groundless,  and  that  as 
nruch  pains  were  taken  as  with  any  other  settlement  of  revenue. 
Your  Excellency  is  further  aware  that  since  it  became  known 
in  England  that  these  charges  were  being  made,  the  Govern- 
ment has  received  letters  from  gentlemen  who  were  engaged 
in  the  settlement  in  high  positions,  and  who  indignantly  re- 
pudiate the  imputations  directed  against  their  carefulness  and 
sagacity.  I  have  read  the  papers  most  diligcntl}',  and  I  find 
the  only  error  worth  mentioning  which  is  charged  against  the 
original  settlement  officers  is  that  they  took  the  state  of  the 
facts  existing  during  the  twelve  years  previous  to  annexation  as 
proof  of  the  state  of  the  rights.     Now,  sir,  with  a  view  to  as- 

T  2 


2/6  SPEECHES   OF   SIR   HENRY   MAINE 

certaining  in  what  degree  the  settlement  officers  were  blaxn- 
able  for  taking  this  course,  permit  me  to  read  a  passage  from 
a  minute  of  the  present  Lieutenant  Governor  of  the  Panjab/ 
who,  it  must  be  recollected,  is  a  very  high  authority  on  opinions 
and  ideas  in  purely  Native  states  of  society  : — '  The  state  of 
things,'  he  says,  'existing  in  the  Panjab  for  a  long  series  of 
years  preceding  annexation  was  such  as  almost  to  extinguish 
proprietary  rights  in  land,  or  at  all  events  to  deprive  them  of 
mostly  all  their  value.  The  people  in  consequence  pos- 
sessed very  indistinct  ideas  in  regard  to  those  rights,  so  that 
the  best  security  for  a  correct  ascertainment  of  the  rights  and 
relations  of  the  several  classes  connected  with  the  land  was 
wanting.'  Other  authorities  who  have  joined  in  this  contro- 
versy have  made  the  same  admission  even  more  strongly,  so 
much  so  that  it  may  almost  be  inferred  from  their  language 
that,  under  Sikh  rule,  there  was  no  such  thing  as  eviction,  and 
no  such  thing  as  the  rent  of  land.  Nor  is  this  last  state- 
ment as  incredible  as  it  may  seem,  for  it  may  well  be  that  the 
Sikh  Government  took  so  much  from  the  cultivator  in  the  form 
of  revenue,  that  nothing,  or  next  to  nothing,  was  left  to  him 
but  the  means  of  subsistence  and  cultivation,  and  consequently 
there  was  nothing,  or  next  to  nothing,  which  could  go  to  the 
landlord  in  the  form  of  rent.  But  what  was  the  problem  before 
the  first  settlement  officers  ?  To  discover  whether  tenants  were 
occupancy-tenants  or  tenants-at-will — whether  they  could  be 
evicted,  and  their  rent  enhanced  at  pleasure — and  this  discovery 
had  to  be  made  in  reference  to  a  state  of  society  which  included 
neither  eviction  nor  rent.  Really,  sir,  the  customary  mode  of 
doing  that  which  was  never  done — the  customary  mode  of 
dividing  the  non-existent — strike  one  as  belonging  to  that 
class  of  questions  on  which  it  is  best  to  decline  giving  a  con- 
fident opinion.  Why  then,  when  the  conditions  of  inquiry 
were  these,  why  should  the  settlement  officers  be  condemned 
for  preferring  one  of  the  best-established  principles  of  juris- 
prudence to  an  investigation  of  the  '  very  indistinct  ideas  '  de- 
scribed by  Sir  D.  Macleod.  There  is,  in  a  memorandum  re- 
cently sent  up,  a  dictum  of  the  settlement  commissioner  that 
'  the  recognition  of  periods  as  tests  of  rights  is  the  very  mis- 

'  The  late  Sir  Donald  Macleod. 


tanjAb  tenancy  277 

chief.'  Well,  sir,  the  recoij^nition  of  a  period  of  time  as  the 
test  of  a  right  may  in  the  Panjab  be  called  a  mischief,  but  it 
is  known  to  jurists  as  a  prescription  ;  and  not  only  are  pre- 
scriptions common  in  all  systems  of  jurisprudence,  but  it  so 
happens  that  the  free  use  of  prescriptions  has  been  selected  by 
jurists  as  the  criterion  for  distinguishing  good  and  civilised 
systems  of  law  from  those  that  are  bad  and  barbarous.  And 
the  reason  is  notorious.  The  accumulated  common-sense  of 
ages  has  shown  that,  even  in  societies  which  have  very  distinct 
ideas  as  to  property,  inquiries  into  rights  which  are  unfre- 
quently  and  intermittently  exercised  are,  if  carried  far  back, 
as  nearly  as  possible  worthless. 

But,  sir,  assuming  that  the  adoption  of  the  twelve-year 
rule  led  to  the  recording  of  some  rights  which  would  not  have 
been  recorded  if  a  different  mode  of  investigation  had  been 
followed,  let  us  see  whether  the  officers  engaged  in  the  recent 
settlement  had  any  advantage  in  prosecuting  their  inquiries 
over  their  predecessors  of  twenty  years  since.  And  first,  sir, 
I  put  aside  the  assumption,  which  I  regret  to  see  occasionally 
made  in  the  papers,  of  superior  sagacity  and  care  in  the  pre- 
sent settlement  officers.  There  is  no  evidence  for  the  assump- 
tion, which  at  best  is  not  very  graceful  ;  and  it  is  probably 
safe  to  take  it  for  granted  that  at  both  settlements  all  parties 
did  their  duty  to  the  best  of  their  ability  and  up  to  the  mea- 
sure of  their  lights.  But  is  it  not  evident,  sir,  that  from  the 
very  nature  of  the  case  the  present  settlement  officers  were 
not  only  not  at  an  advantage,  but  at  a  vast  disadvantage,  as 
compared  with  my  honourable  friend  Sir  R.  Temple  and  his 
colleagues  ?  I  must  again  quote  from  the  Lieutenant  Gover- 
nor the  admission  that,  property  having  little  or  no  value  before 
the  annexation,  '  very  indistinct  ideas  '  prevailed  on  the  sub- 
ject of  proprietary  right.  This,  then,  was  the  subject-matter  of 
inquiry — a  mass  of  '  very  indistinct  ideas  '  which  were  enter- 
tained on  a  particular  subject  twenty  years  ago.  Then,  sir, 
the  nature  of  these  ideas  had  to  be  established  by  the  oral 
testimony  of  very  ignorant  men.  It  is  necessary,  sir,  to  put 
this  clearly,  for  some  of  the  papers  appear  to  me  to  disclose 
a  very  curious  misconception  of  the  settlement  officers.  They 
seem  to  have  supposed  that  what  they  had  to  inquire  into  was 


278  SPEECHES   OF   SIR   HENRY   MAINE 

the  present  ideas  of  the  people  on  the  subject  of  property  and 
tenancy.  But  that,  sir,  cannot  be.  The  true  question  was 
whether  the  first  settlement  of  thePanjab  was  at  variance  with 
local  customs,  and  the  business  in  hand  was  to  take  evidence 
of  those  customs  as  they  existed  before  the  annexation.  And 
as  to  these  customs,  or  rather  ideas  as  to  customs,  admitted  to 
have  been  '  very  indistinct,'  they  had  to  accept  the  oral  testi- 
mony of  very  ignorant  witnesses,  and,  if  possible,  to  make  that 
testimony  prevail  against  a  written  record  made  very  shortly 
after  annexation.  Well,  sir,  it  is  almost  a  proverb  in  India 
that  oral  testimony  is  of  very  little  value.  The  strongest  state- 
ment I  have  seen  on  the  point  fell  from  the  eminent  Native 
Judge  who  sits  on  the  Bench  of  the  High  Court  at  Calcutta. 
Nor  is  it  necessary  to  assign  moral  defects  in  the  witness  as 
the  cause  of  this  untrustworthiness.  The  truth  is,  sir,  that  the 
power  of  answering  questions  intelligently  is  a  fruit  and  result 
of  the  habit  of  interrogating  yourself ;  and  men  who  do  not 
look  into  their  ideas,  who  take  outward  facts  as  they  find  them 
and  remember  nothing  but  their  actual  experience,  cannot 
answer  questions  except  as  to  the  barest  matters  of  fact.  The 
only  effect  of  interrogating  them  is  either  to  reduce  them  to 
confusion,  or  to  get  any  answers  out  of  them  which  the  ques- 
tioner pleases.  Now  I  will  show  presently  what  was  the 
character  of  the  questions  put  to  the  witnesses  ;  at  present  I 
will  only  say  that  their  testimony  was  oral,  and  it  related  to 
'  indistinct  ideas  '  belonging  to  the  past.  But  surely,  sir,  in  the 
Panjab,  as  well  as  elsewhere,  evidence  grows  weaker  in  propor- 
tion as  it  grows  older,  and  therefore  necessarily,  through  the 
mere  fact  of  its  relating  to  matters  of  old  date,  the  evidence 
taken  during  the  recent  settlement  operations  was  incalcu- 
lably weaker  than  that  taken  immediately  after  annexation. 
But  the  age  of  the  evidence  adduced  before  them  was  by  no 
means  the  heaviest  disadvantage  with  which  the  present 
settlement  officers  had  to  struggle.  Surely  it  must  be  evident 
that  the  motives  to  false  testimony  had  vastly  increased,  at 
least  on  the  part  of  one  class.  Property  in  land  which  had 
little  or  no  value  before  the  annexation  has  now  a  very  great 
and  distinct  value,  and  the  real  struggle  obviously  is  whether^ 
in  the  case  of  the  occupancy-tenants,  the  new  profits  shall  be 


panjAb  tenancy  2^9 

divided  between  them  and  the  landlords,  or  shall  go  wholly  to 
the  landlords.  The  position,  therefore,  of  the  two  parties  to 
this  contention  in  the  settlement  courts  was  this  :  on  the  one 
side  you  had  very  ignorant  men  asked  very  difficult  questions 
as  to  indistinct  ideas  of  old  date.  On  the  other,  you  had  wit- 
nesses, a  shade  better  educated,  more  thoroughly  aware  of  the 
matter  in  hand,  but  under  the  strongest  temptation  to  adapt 
their  testimony  to  their  interests. 

Sir,  there  is  much  in  the  detail  of  the  Panjab  settlement- 
proceedings  which  relates  to  matters  which  are  quite  foreign 
to  my  experience.  There  are,  however,  certain  peculiarities  in 
the  method  of  inquiry  pursued,  on  which  it  is  not  presumptu- 
ous in  me  to  form  an  opinion,  and  certainly  those  peculiarities 
have  not  given  me  a  favourable  impression  of  the  value  of  the 
investigation.  I  observe,  for  example,  that  in  a  great  number 
of  cases  the  persons  under  examination,  whether  landlords, 
tenants,  or  witnesses,  were  asked  whether  a  particular  class 
had  a  right  to  do  a  particular  thing,  and  the  point  was  fre- 
quently put  for  decision  to  the  committees  who  acted  as 
referees.  I  do  not  mean  to  say  that  the  word  '  right '  was  in- 
variably used,  but  the  questions  constantly  implied  the  notion 
of  a  right  or  some  shade  of  it.  Now,  everybody  who  has 
paid  even  a  superficial  attention  to  the  subject  is  aware  that 
there  is  no  more  ambiguous  term  than  '  right,'  and  no  idea  less 
definite.  I  do  not  suppose  that  in  the  Oriental  patois  in 
which  these  questions  were  asked  the  word  is  less  equivocal 
than  in  the  cultivated  European  languages,  and  yet  in  Europe 
it  is  only  the  strictest  and  severest  jurists  who  speak  of  Rights 
with  accuracy.  Priind  facie,  when  you  ask  whether  a  class 
had  rights  of  a  particular  kind,  you  mean  legal  rights  ;  but 
legal  rights  imply  a  regular  administration  of  fixed  laws,  and 
there  was  confessedly  no  such  administration  under  Sikh  rule. 
Yet  I  find  the  settlement-officers  inquiring  about  rights  of 
eviction  or  enhancement,  without  explaining  (and  apparently 
without  being  conscious  of  the  need  of  explaining)  whether 
the  rights  in  question  were  of  the  nature  of  legal  rights,  or 
whether  moral  rights  were  meant,  or  whether  what  was 
intended  was  merely  the  physical  power  of  the  stronger  to  do 
what  he  pleased  to  the  weaker.     And  these  difficult  and  am- 


280  SPEECHES   OF    SIR   HENRY   MAINE 

biguous  questions — questions  which  in  reaHty  sometimes  in- 
volved highly-refined  abstractions — questions  which  I  do  not 
hesitate  to  say  that,  even  if  I  had  been  cognisant  of  the  facts, 
I  could  not  always  myself  have  answered  without  fuller  eluci- 
dation of  their  meaning — were  put  to  ignorant  and  uneducated 
men,  to  men  therefore  who,  like  all  ignorant  men,  are  capable 
only  of  thinking  in  the  concrete  and  in  connection  with  actual 
facts,  and  were  put,  moreover,  with  reference  to  a  state  of 
facts  which  ceased  to  exist  twenty  years  ago.  Perhaps,  sir, 
it  may  be  said  that  the  rights  about  which  inquiry  was  made 
were  customary  rights — rights  arising  under  a  Custom.  But 
here,  so  far  from  having  my  ideas  cleared,  I  find  myself  in 
greater  difficulties  than  ever.  For  it  appears  to  me  that  in 
the  papers  relating  to  the  recent  Panjab  settlement,  the  word 
'  custom '  is  used  in  a  sense  certainly  unknown  to  jurispru- 
dence, and  I  believe  also  to  popular  usage.  A  custom  is 
constantly  spoken  of  as  if  it  were  independent  of  that  which 
is  generally,  if  not  universally,  considered  to  be  the  foundation 
of  a  custom.  According  to  the  understanding  of  lawyers — and 
I  should  have  said  according  to  the  understanding  of  all  men, 
barbarous  or  civilised — the  foundation  of  a  Custom  is  habitual 
practice,  a  series  of  facts,  a  succession  of  instances,  from  whose 
constant  recurrence  a  rule  is  inferred.  But  the  writers  of 
these  papers  perpetually  talk  of  customs  of  eviction,  of  en- 
hancement, or  of  rack-rent,  and  in  the  same  breath  admit  the 
non-existence  of  any  practice  of  the  kind  alleged.  Some 
broadly  state  that  there  never  was  an  instance  of  the  cus- 
tomary right  being  exercised  ;  nearly  all  allow  that  ks  exer- 
cise was  as  rare  as  possible,  nor  do  they  attempt  to  show  that 
the  rare  instances  of  its  exercise  were  not  simple  acts  of 
violence.  Indeed,  a  good  deal  of  the  papers  is  taken  up  with 
conjectural  explanations  of  the  reasons  why  the  custom  was 
not  acted  upon,  or,  as  I  should  venture  to  put  it,  why  there 
was  in  point  of  fact  no  custom  at  all.  A  curious  illustration 
of  these  (to  me)  remarkable  ideas  about  customs  occurs  in  the 
suggestions  of  the  gentlemen  who  lately  assembled  at  Marri 
for  the  revision  of  the  Bill  as  settled  by  the  select  committee. 
The  Bill  contained,  and  still  contains,  a  provision  allowing  the 
presumption  of  occupancy-right,  created  by  entry  in  the  settle- 


panjXb  tenancy  281 

ment  record,  to  be  rebutted  by  showing  that  '  tenants  of  the 
same  class  in  the  same  or  adjacent  villages  have  ordinarily- 
been  ejected  at  the  will  of  the  landlord.'  The  so-called 
Marri  Committee  proposed  to  reject  this  provision,  and  even 
the  more  moderate  section  proposed  to  substitute  another  to 
the  effect  that  rebuttal  should  turn  upon  proof  that  the  entry 
was  opposed  to  a  custom  locally  recognised  and  acted  upon. 
Obviously  they  considered  that  it  would  be  impossible  to  show 
that  tenants  were  ordinarily  evicted  at  will  by  their  landlords. 
As  a  mere  matter  of  curiosity,  I  should  really  like  to  see  the 
evidence  which  would  be  tendered  to  a  court  of  justice  for  the 
purpose  of  establishing  a  custom,  in  the  face  of  an  admission 
that  instances  of  the  exercise  of  the  alleged  customary  right 
had  never  occurred  or  were  extraordinary  occurrences.  Sir, 
I  must  say  that,  on  this  ground  alone,  the  claim  preferred  for 
the  recent  settlement  to  be  superior  to  all  former  settlements 
must  be  held  to  fail.  I  do  not  pretend  to  have  an  exhaustive 
acquaintance  with  the  voluminous  literature  of  Indian  revenue 
settlements  ;  but  I  know  something  of  it,  and  I  think  I  can 
see  that  the  older  investigators  of  Native  customs  proceeded 
on  a  mode  of  inquiry  which  is  perfectly  intelligible.  They 
inquired  for  the  most  part  into  practices  and  into  facts,  not 
into  vague  opinions.  They  inferred  a  rule  from  the  facts  they 
believed  themselves  to  have  discovered,  and  then  they  stereo- 
typed it.  No  doubt  they  may  have  made  mistakes.  They 
may  have  generalised  too  rapidly,  may  have  neglected  local 
exceptions,  and  may  have  made  a  usage  universal  which  was 
only  general  or  even  occasional.  But  at  all  events  their  un- 
dertaking was  perfectly  practicable,  whereas  I  doubt  whether 
the  method  followed  in  the  recent  settlement  inquiries  was  not 
fatal  to  any  trustworthy  result. 

That,  sir,  however,  is  not  my  case.  I  say  that,  even  if 
these  beneficial  rights  of  occupancy  were  really  planted  in  the 
Panjab  by  the  British  Government,  they  have  grown  up  and 
borne  fruit  under  its  shelter,  and  that  it  is  not  for  its  honour 
or  interest  to  give  them  up  to  ruthless  devastation.  Nor  is  it 
solely  for  the  interest  of  the  British  Government  that  they 
.should  be  protected — it  is  for  the  interest  of  everybody  who 
has    a    vested    right   in    property,  whether    movable    or    im- 


2S2  SPEECHES   OF   SIR   HENRY   MAINE 

movable,  and  whatever  be  the  form  it  may  take  among  the 
innumerable  forms  which  proprietary  right  assumes  in  India. 
There  could  be  no  more  dangerous  precedent  than  the  whole- 
sale obliteration  by  the  Government  of  vested  rights  which 
the  Government  created  fifteen  or  twenty  years  ago,  merely 
on  the  ground  that  the  Government  made  a  mistake.  I  know, 
indeed,  that  it  is  a  point  against  me  that  this  view  does  not 
seem  to  be  taken  by  the  Lieutenant  Governor  of  the  Panjab, 
whose  name  is  not  to  be  mentioned  without  respect.  But  I 
cannot  help  thinking  that  Sir  Donald  Macleod  reconciles  these 
proceedings  with  his  sense  of  justice  and  expediency  by  his 
belief  that  a  system  might  be  devised  of  buying  out  the  occu- 
pancy-tenants on  the  principle  of  equitable  compensation. 
Now,  sir,  I  have  always  thought  that  over  limited  areas  of 
land  in  India — particularly  in  the  vicinity  of  great  cities,  where 
capital  is  abundant,  and  where  great  cultivation  is  possible — a 
system  of  buying  out  occupancy-rights  for  fair  value  might 
have  much  to  recommend  it,  and  might  solve  many  embar- 
rassing difficulties.  But  I  am  satisfied  that  for  a  whole  pro- 
vince like  the  Panjab  such  a  system  would  be  quite  imprac- 
ticable, and  I  say  this  the  more  confidently  because  the  plan 
has  evidently  been  suggested  by  what  seems  to  me  an 
erroneous  view  of  the  functions  of  the  English  Copyhold  Com- 
missioners. It  has  truly  been  said,  in  the  first  place,  that  the 
office  of  the  Copyhold  Commission  is  to  get  rid,  not  of  the 
class  corresponding  to  the  tenants,  but  of  the  class  corre- 
sponding to  the  landlords.  It  is  the  lord  of  the  manor  who  is 
bought  out,  not  the  copyholder.  Thus  it  is  the  few  who 
receive  compensation  from  the  many,  not  the  many  from  the 
few.  Moreover,  the  compensation  proper  to  be  given  for  the 
heriots  and  other  manorial  dues  is  calculable  with  comparative 
ease,  and  scarcely  amounts  in  any  whole  year  to  a  very  serious 
aggregate  sum.  Still,  with  all  these  facilities,  the  Copyhold 
Commission  is  notoriously  cumbrous  and  dilatory  in  its  action. 
A  body  of  functionaries,  however,  charged  with  arranging 
compensation  for  all  the  tenants  affected  by  the  recent  settle- 
ment-proceedings would  have  a  Herculean  task  before  it.  The 
rights  to  be  paid  for  hardly  admit  of  estimation,  and  the  mass 
of  those  rights  is  enormous.     Although,  too,  the  Panjab  has 


panjAb  tenancy  aSjr 

advanced  so  cxtraordinaril}'  in  prospcrit)',  it  ma}'  be  doubted 
whether  it  contains  the  means  for  the  pecuniary  compensation 
which  would  be  required  ;  and,  indeed,  I  venture  to  think  that 
if  an  attempt  were  made  over  territory  so  vast  as  that  com- 
prised in  a  whole  Indian  province  to  buy  out  occupancy-rights 
on  equitable  principles,  no  system  would  be  possible  except 
that  recently  tried  in  Russia — a  system  of  dividing  the  land 
between  landlord  and  tenant,  which  would  probably  be  in- 
finitely more  unpopular  with  the  proprietary  class  tlian  the 
present  system  of  dividing  the  profits. 

Sir,  I  have  stated  my  doubts  as  to  this  Bill  as  strongly  as 
possible,  chiefly  because,  as  I  said  before,  I  do  not  think  that 
side  of  the  question  has  had  fair  play.  But  I  do  not  in  the 
least  wish  to  withdraw  from  the  compromise  which  the  Bill 
embodies.  The  article  of  that  compromise  which  involves  the 
greatest  concession  on  the  part  of  those  who  agree  with  me 
is  the  erasure  from  the  settlement-record  of  all  the  tenants, 
once  registered  as  having  occupancy-rights,  who  have  admitted 
before  the  present  settlement  officers  that  they  can  be  evicted 
by  their  landlords.  I  will  not  inquire  too  closely  or  curiously 
whether  the  admission  was  intelligently  given,  whether  the 
tenant  was  or  was  not  thinking  of  the  moral  right  of  his  land- 
lord, or  of  his  power  as  the  stronger  man.  Every  com- 
promise must  involve  concession,  and  if  there  is  any  of  these 
rights  which  it  is  equitable  to  destroy,  they  are  those  which 
the  owner  has  in  some  sense  or  other  disclaimed.  One  point, 
and  one  only,  remains  for  me  to  notice.  It  may  perhaps 
appear  at  first  sight  a  merely  legal  point,  but  it  is  in  reality  one 
of  the  most  far-reaching  importance.  Sir,  what  is  the  proper 
construction  to  be  put  on  certain  provisions  of  Regulation 
VII.  of  1822  ?  On  the  annexation  of  a  new  country  to  the 
British  Indian  Empire,  two  operations  are  carried  through — 
the  revenue  payable  to  Government  is  settled,  and  a  Record 
of  Rights  in  land,  which  has  hitherto  been  considered  the 
surest  guarantee  of  the  stability  of  those  rights,  is  framed 
by  the  settlement-officers.  When  the  period  for  which  the 
revenue  has  been  settled  expires,  everybody  agrees  that  it  can 
be  re-settled  according  to  the  increased  or  diminished  profits  of 
the  land.     But  can  the  Record  of  Rights  be  re-cast  by  the 


284  SPEECHES   OF   SIR   HENRY   MAINE 

settlement-officers  at  new  settlements,  not  on  complaint,  but 
officiously  and  of  their  own  motion  ?     This  is  the  claim  of 
the  Panjab  settlement-officers,  which  I  deny  on  grounds  both 
of  reason  and  of  expediency.     I  admit  that  the  language  of 
the  old  Regulation  is  incautious.     The  truth  is,  these  older 
enactments  were  not  intended  to  stand  the  tests  now  applied 
to  them  ;  if  they  were  carried  out  in  a  sense  not  intended  by 
their  framers,  an  executive  order,  which  in  fact  emanated  from 
an  authority  identical  in  point  o{ personnel \\'\W\  the  Legislature, 
corrected  the  error.     But,  I  believe,  chiefly  because  the  authors 
of  the  Regulation  were  great  men  and  men  of  strong  sense, 
that  they  intended  nothing  so  preposterous  as  a  periodical, 
wholesale,  officious    revision  of  the  record.     Moreover,  it  is 
only  the  '  spirit '  of  the  Regulations  which  has  been  extended 
to  the  Panjab,  and  whatever  be  the  exact  meaning  of  the  dis- 
tinction, it  is  assuredly  the  letter,  and  not  the  spirit,  of  the 
Regulation  which  countenances  these  late  proceedings.     For 
just  see  what  is  claimed.     The  land  in  India  is  the  foundation 
of  society,  and  it  is  asserted  that  once  every  ten,  fifteen,  or 
twenty  years  a  number  of  gentlemen,  many  of  whom  it  is 
surely  not  disrespectful  to  call  young  gentlemen,  may  go  in 
and  reconstruct  the  very  basis  of  society.     I  have  sometimes 
heard  and  seen  the  advocacy  of  tenant-right  called  socialistic, 
but  what  Communist  in  his  wildest  dreams  ever  imagined  a 
wholesale  re-adjustment  of  rights  in  land  once  every  fifteen 
years  ?     There  is  not,  moreover,  the  smallest  security  for  the 
principles  on  which  such  re-adjustment  would  take  place.     If 
an  ordinary  contingency  of   Indian  life  had  happened,  and 
certain  able  and  energetic  officials  had  fallen  ill  during  the 
late  settlement,  I  am  not  sure  that  it  would  have  concluded 
on  the  principles  on  which  it  began  ;  and,  for  all  I   know,  if 
these  pretensions  be  allowed,  and  if  the  whirligig  of  Indian 
opinion  goes  round  as  rapidly  as  it  has  done  in  my  time,  we 
may  have    tenant-right    introduced  universally  fifteen    years 
hence,  possibly  in  imitation  of  Irish  legislation  which  might 
have  occurred  in  the  interval.     There  is  no  question,  sir,  I 
suppose,  that    the    extraordinary  burst    of  prosperity  which 
invariably  follows  the  annexation  of  a  new  State  to  British 
India  is  chiefly  owing  to  the  stability  which  we  give  to  pro- 


CIVIL   MARRIAGE   OF    NATIVES  285 

perty — more  to  that,  perhaps,  than  to  the  protection  we  give 
to  life  and  limb.  If,  however,  these  novel  views  as  to  the 
unlimited  supremacy  of  Government  officers  over  property 
prevail,  I  am  not  sure  we  shall  not  by  such  experiments  arrest 
the  progress  of  the  country  in  civilisation  even  more  than  did 
the  dispossessed  Native  ruler  by  his  tyranny  and  oppression. 


CIVIL   MARRIAGE   OF  NATIVES 

November  27,  1S6S. 

The  legality  of  the  marriage  of  persons  not  belonging  to  any  of  the 
recognised  religions  of  India,  and  not  conforming  to  the  rites  of  any 
such  religion,  had  long  been  doubtful.  The  members  of  the  Brahma- 
samaja,  for  instance,  having  become  unwilling  to  contract  marriage, 
or  to  allow  their  children  to  contract  marriage,  with  the  ceremonies 
practised  among  Hindus,  consulted  the  Advocate  General  of  Bengal 
as  to  the  legal  consequences  of  so  doing.  He  advised  them  that  as 
they  had  quoad  their  marriages  ceased  to  be  Hindus,  but  had  not 
conformed  to  the  discipline  and  rites  of  any  religion  recognised  in 
India,  it  was  clear  that  their  marriages  were  invalid  and  that  the  issue 
was  illegitimate.  At  the  request  of  the  Viceroy,  Mr.  Maine  had  an 
interview  with  Keshab  Chandra  Sen,  the  leader  of  the  Brahma-samaja. 
The  result  was  that  a  Bill  to  legalise  marriages  between  certain  Natives 
of  British  India  not  professing  the  Christian  religion  was  framed  and 
published.  On  moving  that  this  Bill  be  referred  to  a  select  committee 
Mr.  Maine  spoke  as  follows  : 

Sir,  this  Bill,  after  leave  to  introduce  it  had  been  given,  was 
published  by  your  Excellency's  permission  under  a  suspension 
of  the  rules,  so  that  public  opinion  might  pronounce  upon  it.  It 
has  elicited  a  good  deal  of  criticism,  and  if  the  Council  will  allow 
me  I  will  proceed  to  notice  briefly  some  of  the  observations 
which  have  been  made  upon  it.  But  before  I  do  so,  I  venture 
to  point  out  how  slight  an  extension  of  the  existing  law  is  in- 
volved in  the  measure,  and  that  it  is  only  the  last  of  a  series 
of  steps  which  have  all  been  taken  in  the  same  direction.  I 
imagine  it  to  be  known  to  the  Council  that,  owing  to  the  lan- 
guage of  certain  statutes  and  charters  regulating  the  jurisdic- 
tion of  the  Indian  courts,  the  law  of  their  religion  became  the 
law  applicable  to  litigants.  There  being  no  fundamental  law 
in  India,  the  doctriiie  thence  prevailed  (though  I  should  per- 


•286  SPEECHES   OF   SIR    HENRY   MAINE 

haps  surprise  the  Council  if  I  were  to  state  how  much  doubt 
attends  the  point)  that  the  greatest  part  of  the  civil  rights  of 
the  Natives  of  India  is  determined  by  the  religion  which  they 
profess.  It  would  appear  that  about  forty  years  ago  some  alarm 
was  excited  by  the  contention  that  any  act  which  excluded  a 
man  from  his  religious  communion  entailed  the  forfeiture  of 
his  civil  rights.  For  remedy  of  this,  section  9  of  Regulation 
VII.  of  1832  was  passed,  which  provided  as  follows  : — 

'  Whenever  in  any  civil  suit  the  parties  to  such  suit  may  be  of  dif- 
ferent persuasions,  when  one  party  shall  be  of  Hindu  and  the  other 
of  the  Muhammadan  persuasion  :  or  where  one  or  more  of  the  parties  to 
the  suit  shall  not  be  either  of  the  Muhammadan  or  Hindii  persuasion  : 
the  laws  of  those  religions  shall  not  be  permitted  to  operate  to  deprive 
such  party  or  parties  of  any  property  to  which,  but  for  the  operation 
of  such  laws,  they  would  have  been  entitled.' 

The  language  of  this  provision,  it  will  be  seen,  is  some- 
what cumbrous  and  perplexed,  and,  moreover,  it  merely  applies 
to  Bengal.  Accordingly,  the  Legislature  of  the  day  passed  Act 
XXI.  of  1850,  of  which  section  i  is  to  this  effect :  — 

'  So  much  of  any  law  or  usage  now  in  force  within  the  territories 
subject  to  the  Government  of  the  East  India  Company  as  inflicts  on 
any  person  forfeiture  of  rights  or  property,  or  may  be  held  in  any  way 
to  impair  or  affect  any  right  of  inheritance,  by  reason  of  his  or  her 
renouncing,  or  having  been  excluded  from,  the  communion  of  any 
religion,  or  being  deprived  of  caste,  shall  cease  to  be  enforced  as  law 
in  the  courts  of  the  East  India  Company,  and  in  the  courts  esta- 
blished by  Royal  Charter  within  the  said  territories.' 

That  is  the  Lex  Loci  Act  of  Lord  Dalhousie's  Government, 
which  is  still  the  charter  of  religious  liberty  in  India.  I  my- 
self do  not  entertain  a  particle  of  doubt,  and  I  venture  to  think 
that  no  member  of  the  Council  who  has  read  the  discussion 
which  preceded  the  enactment  will  doubt,  that  it  was  the  in- 
tention of  the  framers  of  that  Act  to  make  it  complete,  and  to 
relieve  from  all  civil  disabilities  all  dissidents  from  Native  reli- 
gions. It  was  meant  to  condone  all  offences  against  religious 
rule,  whether  they  were  acts  of  omission  or  of  commission. 
But  probably  from  mistake,  probably  from  attending  too  ex- 
clusively to  the  immediate  question  before  them,  which  affected 
only  the  first  generation  of  dissidents,  they  left  standing  the 
greatest  of  all  disabilities — the  disability  to  contract  a  lawful 


CIVIL   MARRIAGE   OF    NATIVES  287 

marriage.  It  is  incredible  to  mc  that,  except  by  an  oversight 
they  should  have  expressly  provided  for  the  protection  of  the 
right  of  inheritance  but  should  have  omitted  to  provide  for 
the  right  of  contracting  marriage,  without  which  inheritance 
cannot  arise.  There  has  been  received  a  petition  from  the 
British  Indian  Association  of  Bengal,  in  which  the  Association 
objects  not  only  to  the  present  measure,  but  to  Act  XXI. 
of  1850,  which  they  say  was  passed  against  the  wishes  of  the 
Native  community.  The  Council  will  no  doubt  attach  to  the 
arguments  of  that  petition  such  weight  as  it  may  think  fit,  but 
at  present  I  claim  the  statement  as  to  the  Lex  Loci  Act  as  an 
admission  that  the  principle  of  one  includes  the  principle  of 
the  other,  and  that  he  who  objects  to  the  present  Bill  must 
also  object  to  Lord  Dalhousie's  measure.  There  is,  however, 
no  doubt  a  defect  of  the  law  which  has  been  brought  to  notice 
by  a  portion  of  the  sect  of  Hindus  known  as  the  Brahmos,  who 
celebrate  their  marriages  according  to  a  ritual  which  they  con- 
sider purified.  An  opinion  of  the  Advocate  General  given  on 
a  case  stated  by  them  is  to  the  effect  that  these  marriages  are 
invalid,  and  the  offspring  of  them  accordingly  illegitimate.  I 
do  not  dissent  from  Mr.  Covvie's  opinion,  and  indeed  I  do  not 
see  how  he  could  have  given  any  other  from  a  purely  legal 
point  of  view.  But  it  is  impossible  to  have  stated  a  principle 
of  more  formidable  application.  For  example,  the  civil  rights 
of  the  Sikhs  in  the  Panjab  depend  on  the  rules  of  their  reli- 
gion, because  the  Sikhs  are  considered  to  come  under  the  de- 
scription of  Hindus  within  the  meaning  of  the  earlier  statutes. 
But  are  the  marriages  of  Sikhs  celebrated  with  orthodox  regu- 
larity ? — and,  if  they  are,  where  does  orthodoxy  begin  and 
where  does  it  end  ?  I  have  mentioned  the  Sikhs,  not  for  the 
purpose  of  starting  this  question,  but  on  account  of  a  fact 
which  has  become  known  to  me  since  the  Bill  was  published, 
and  is  doubtless  known  to  your  Excellency,  that  the  Sikh  re- 
ligion, in  itself  a  modern  religion,  has  a  tendency  to  throw  off 
sub-sects  which  adopt  considerable  novelties  of  doctrine  and 
practice.  And  in  fact  it  would  seem  that  the  same  process 
goes  on  all  over  India,  and  even  in  provinces  little  affected  b}' 
education  and  by  the  indirect  influence  of  Christianity.  The 
immobility  of  Native  religions,  no  doubt,  exists,  but  it  exists 


288  SPEECHES   OF   SIR    HENRY    MAINE 

within  shifting  Hmits,  and  there  is  much  more  formation  of 
new  creeds  and  practices  \\-\?a\  primd  facie  appears.  Now  to 
all  these  new  religious  communities  the  legal  doctrine  of  the 
Advocate  General  applies.  One  reason,  however,  why  we  should 
remove  the  difficulty  is  that,  in  my  humble  judgment,  it  is 
entirely  of  our  own  creation.  It  must  strike  every  observant 
man  that,  by  our  introduction  of  legal  ideas  and  our  adminis- 
tration of  justice  through  regular  courts,  we  give  a  solidity  and 
rigidity  to  Native  usage  which  it  does  not  naturally  possess.  It 
seems  to  me  that,  in  order  to  prevent  the  monstrous  injustice 
which  occasionally  results  from  this  process,  we  must  control 
it  by  the  proper  instrument — timely  legislation. 

Sir,  I  now  proceed  to  the  principal  objections  which  have 
been  raised  against  the  measure.  In  front  of  these  I  place  the 
objection  that  it  does  not  apply  to  Christians.  Now,  sir,  every 
imputation  that  this  Government  intends  to  establish  an  in- 
equality between  different  classes  of  Her  Majesty's  subjects  is 
serious,  and  therefore  I  am  much  indebted  to  those  who  have 
pointed  out  that  this  objection  rests  upon  misapprehension. 
The  words  which  render  the  Bill  inapplicable  to  persons  pro- 
fessing the  Christian  religion  are  taken  from  the  Statute  14  & 
1 5  Vic.  c.  40,  which  regulates  the  civil  marriage  of  Christians 
in  India.^  It  was  necessary  to  keep  the  two  systems  of  regis- 
tration apart,  since  it  would  generally  not  be  convenient  for 
Native  gentlemen  and  ladies  to  have  recourse  to  the  registrar 
appointed  under  the  statute.  But  the  principle  of  the  present 
measure  is  to  place  Natives  as  nearly  as  possible  on  the  same 
footing  as  Europeans. 

Sir,  the  next  objection — and  no  doubt  this  is  a  more  genuine 
and  sincere  objection — is  that  civil  marriage  is  quite  modern 
in  Europe,  and  that  India  may  not  be  sufficiently  advanced 
to  dispense  with  the  necessity  of  the  forms  of  a  religious  mar- 
riage. The  fallacy  of  the  argument  does  not  lie  in  the  mis- 
statement of  the  fact,  but  in  the  application  of  it,  and  in  the 
assumption  that  it  has  any  relevancy  to  the  condition  of  India. 
It  is  true  that  civil  marriage,  which  was  once  an  universal  in- 
stitution of  the  Western  world,  disappeared  for  several  cen- 
turies, and  was  only  revived  about  a  hundred  years  ago  by  the 

'  Since  repealed  by  the  Statute  Law  Revision  Act,  1875. 


CIVIL   MARRIAGE   OF    NATIVES  289 

Emperor  Joseph  II.  in  the  hereditar)'  States  of  the  House  of 
Austria.  Probablj^  the  last  rehcs  of  the  absolute  obliL;ation 
of  religious  marriage  arc  at  this  moment  disappearing  in  Sjiain- 
But  the  theor)-  which  imposed  religious  marriage  in  Europe  has 
never  had  any  counterpart  in  India.  In  European  countries 
the  legislator  believed,  or  professed  to  believe,  that  some  one 
religion  was  true,  and  could  alone  impart  efficacy  to  the  rites 
by  which  marriage  was  celebrated.  That  was  his  justification, 
whatever  it  was  worth.  For  the  protection  of  that  one  reli- 
gion, and  in  its  interest,  he  compelled  everybody  to  submit  to 
its  ceremonial.  But  there  never  has  been  anything  like  this 
in  India  under  the  British  Government,  and  whatever  were  the 
theory  of  the  Muhammadans,  there  was  nothing  like  it  in  their 
practice.  It  is  a  famous  saying  of  a  well-known  French  states- 
man, that  '  the  law  should  be  atheistic'  Well,  if  the  expres- 
sion be  permissible,  the  law  of  marriage  has  in  this  countr}' 
always  been  atheistic,  in  the  sense  that  it  has  been  perfectly 
indifferent  between  several  religions  of  which  no  two  could  be 
true.  One  may  be  true,  but  not  two.  This  peculiarity  of 
Indian  law  results  in  the  rule  that  a  man  may  at  pleasure 
desert  the  religion  in  w'hich  he  was  born  and  contract  a  civil 
marriage.  A  Hindu  can  become  a  Christian  or  a  Muhammadan, 
or  he  may  adopt  the  fetichism  of  the  Kols  or  Santhals,  and 
he  can  contract  a  lawful  marriage.  But  if  he  stops  short  of 
that,  as  the  law  stands,  marriage  is  denied  to  him.  Take  the 
case  of  a  Hindu  becoming  a  Muhammadan,  a  kind  of  conxcrsion 
which  goes  on  every  day  of  our  lives.  The  convert  is  com- 
pelled by  the  principles  of  his  new  religion  to  regard  the  faith 
of  his  ancestors  as  hateful  and  contemptible.  But  if  he  does 
not  go  so  far  as  that,  if  he  retains  some  tenderness  for  his  old 
faith,  and  continues  to  regard  it  as  not  absolutely  evil,  he  is 
debarred  from  all  share  in  the  fundamental  institution  of  organ- 
ised civil  society.  Such  a  state  of  the  law  is  unexampled  in 
Europe.  Nothing  in  the  Western  world  has  any  relevancy 
towards  it  or  bearing  on  it. 

I  now  pass  to  another  objection,  which  is  no  doubt  sin- 
cerely advanced.  It  is  said  that  we  are  bound  to  protect  the 
Native  religions  to  the  extent  of  forbidding  their  adherents  to 
desert  them,  except  for  a  recognised    religion.     There  is  no 

U 


290  SPEECHES   OF    SIR   HENRY   MAINE 

doubt  that  there  is  some  sort  of  indirect  protection  to  Native 
reHgions  given  by  this  state  of  the  law  of  marriage  in  the  exist- 
ing condition  of  Native  society.  Now,  can  we  continue  this 
protection  ?  I  think  we  cannot.  Take  the  case  of  the  appH- 
cants  for  the  present  measure.  They  say  that  the  ritual  to 
which  they  must  conform,  if  they  wish  to  contract  lawful  mar- 
riages, is  idolatrous.  I  don't  use  the  word  offensively,  but 
merely  in  the  sense  in  which  a  lawyer  in  the  High  Court  is 
occasionally  obliged  to  speak  of  the  family  idol.  They  say  that 
the  existing  Hindu  ceremonial  of  marriage  implies  belief  in 
the  existence  or  power  of,  and  worship  addressed  to,  idols. 
No  doubt  there  are  some  of  the  Brahmos  who  have  as  little 
belief  in  these  beings  as  the  applicants,  but  still  do  not  object 
to  go  through  the  ritual  ;  and,  naturally  enough,  they  exhibit 
considerable  impatience  at  the  scruples  of  their  co-religionists. 
But  that  is  only  a  part  of  the  inevitable  history  of  opinion. 
The  first  step  is  to  disbelieve  ;  the  next  to  be  ashamed  of  the 
profession  of  belief  The  applicants  allege  that  their  con- 
sciences are  hurt  and  injured  by  joining  in  a  ritual  which  implies 
belief  in  that  which  they  do  not  believe.  Now,  can  we  compel 
them  to  submit  to  this  ritual  ?  Sir,  nobody  can  feel  more 
strongly  than  I  do  that  we  are  bound  to  refrain  from  interfer- 
ing with  Native  religious  opinions  simply  on  the  ground  that 
those  opinions  are  not  ours,  and  that  we  are  bound  to  respect 
the  practices  which  are  the  expression  of  these  opinions,  so 
long  as  they  do  not  violate  decency  and  public  order.  That 
is  the  condition  of  our  government  in  this  country.  I  will 
even  go  further  and  say  that,  where  a  part  of  a  community 
come  forward  and  allege  that  they  are  the  most  enlightened 
members  of  it,  and  call  on  us  to  forbid  a  practice  which  their 
advanced  ideas  lead  them  to  think  injurious  to  their  civilisa- 
tion, the  Government  should  still  be  cautious.  This  is  the  case 
of  those  enlightened  gentlemen  who  ask  us  to  abolish  poly- 
gamy, both  as  regards  themselves  and  as  regards  their  less 
informed  co-religionists  who  do  not  agree  with  them.  Here 
the  Government  of  India,  acting  in  concurrence  with  the 
Government  of  his  Honour  the  Lieutenant  Governor,  has  de- 
clined to  listen  to  the  petition,  much  as  may  be  said  for  it. 
Here,  however,  we  have  a  very  different  case.     A  number  of 


CIVIL    MARRIAGE   OF    NATIVES  29 1 

gentlemen  come  forweird  and  ask  to  be  relieved  from  the  ne- 
cessity of  submitting-  to  rites  against  which  their  own  conscience 
rebels.  They  cio  not  ask  to  impose  their  ideas  on  others,  but 
to  be  relieved  from  a  burthen  which  presses  on  themselves. 
Can  we  refuse  the  relief.?  I  think  we  cannot.  I  think  the 
point  is  here  reached  at  which  it  is  impossible  for  us  to  forget 
that  we  do  not  ourselves  believe  in  the  existence  or  virtue  or 
power  of  the  beings  in  whose  honour  this  ritual  is  constructed. 
And  I  say  this  the  more  confidently,  because  I  believe  that 
such  a  doctrine  is  in  the  true  interest  of  the  sincere  believers 
in  Native  religions.  If  we  once  begin  trampling  on  the  rights 
of  conscience,  it  is  very  far  from  certain  that  the  process  will 
continue  for  the  advantage  of  Native  religions.  The  members 
of  these  communities  have  the  strongest  reason  for  maintain- 
ing the  absolute  sacredness  of  the  rights  of  conscience. 

I  now  pass  to  a  few  verbal  criticisms,  for  some  of  which 
there  is  foundation.  It  is  objected  that  it  is  doubtful  whether, 
in  section  i,  clause  2, the  word  'unmarried  '  includes  a  widow. 
I  do  not  feel  any  doubt  myself  as  to  the  interpretation  which 
a  court  would  put  on  the  word,  but  it  can  be  made  still  clearer 
in  select  committee.  The  w^ords  *  without  having  been  law- 
fully divorced,'  in  section  8,  have  also  attracted  notice,  and  it 
has  been  asked  whether  the  Government  is  about  to  propose 
a  law  of  divorce.  The  words,  I  apprehend,  must  stand,  be- 
cause the  measure  may  possibly  apply  to  sects  who  have  a  law 
of  divorce,  and,  indeed,  even  among  the  Brahmos  there  are  (I 
am  informed)  some  Muhammadans  whom  it  is  not  proposed  to 
deprive  of  any  of  their  privileges,  except  in  so  far  as  they  arc 
modified  by  this  measure.  So  far  as  concerns  the  Hindus^ 
there  is  not,  on  the  part  of  your  Excellency's  Government,  any 
intention  to  propose  a  law  of  divorce  for  them,  and  I  am  told 
that  the  Brahmos  do  not  consider  their  sect  sufficiently  ad- 
vanced for  such  a  law. 

Another  objection  which  requires  attention  is  that  the 
Bill  does  not  compel  the  registrar  to  go  to  the  house  of  the 
persons  intending  to  marry.  There  is  nothing  to  prevent  his 
going,  but  it  is  said  that  he  may  demand  an  exorbitant  fee 
as  the  price  of  his  presence.  That  may  be  set  right  by  a 
provision  that  he  shall  attend  at  the  house  of  the  marrying 

u  2 


292  SPEECHES   OF   SIR   HENRY   MAINE 

parties  on  a  fee  being  paid  somewhat  in  excess  of  the  ordi 
nary  fee. 

Sir,  I  now  come  to  a  difficulty  of  which  I  myself  have, 
from  the  first,  felt  the  seriousness.  When  I  obtained  leave  to 
introduce  the  Bill,  I  stated  that  I  was  not  satisfied  with  the 
table  of  prohibited  degrees.  It  was  introduced  at  the  sugges- 
tion of  the  applicants,  and  represents,  I  believe,  the  ideas  of 
educated  Hindus  of  some  social  position  in  Bengal.  But  it 
does  not  accord  with  Muhammadan  ideas,  and  still  less  with  the 
usage  of  Hindus  beyond  Bengal.  The  petition  of  the  British 
Indian  Association  objects  to  the  Bill  that  it  legalises  marriages 
between  members  of  different  castes.  The  gentlemen  who 
have  joined  in  that  petition  have,  however,  too  good  legal  advice 
to  be  ignorant  that,  though  inter-marriages  between  the  castes 
are  no  doubt  improper  according  to  Hindu  notions,  there  has 
always,  and  everywhere,  been  a  doubt  whether  the  impropriety 
amounted  to  illegality.  I  am  not  now  speaking  of  this  class  of 
prohibitions,  but  of  the  prohibitions  in  force  in  large  portions 
of  Upper  India.  These  are  extremely  numerous  and  complex, 
and  turn  not  so  much  on  proximity  of  blood  as  on  tribal  relation. 
The  whole  subject  is  one  of  some  interest,  and  has  been  lately 
•examined  by  a  member  of  my  own  profession,  Mr.  McLennan.^ 
Reasonable  or  unreasonable,  these  prohibitions  are  tenaciously 
adhered  to  by  certain  of  the  Natives  of  Upper  India,  and  would 
no  doubt  be  enforced  by  the  courts.  The  difficulty  of  con- 
structing a  table  of  prohibited  degrees  which  would  suit  all 
Natives  of  India  is  so  enormous  that  I  am  inclined  to  suggest, 
for  the  consideration  of  the  select  committee,  a  provision  that 
nobody  shall  be  allowed  to  marry,  under  the  new  law,  any  man 
•or  woman  whom  she  or  he  might  not  lawfully  have  married  if 
the  law  had  not  passed.  This  will  enable  us  to  get  rid  of  the 
schedule  altogether.  I  am  the  more  inclined  to  recommend 
this  course  because  I  do  not  think  that  the  table  of  prohibited 
degrees  in  use  in  the  Western  world  can  be  defended  on 
grounds  universally  applicable.  It  seems  to  me  that  such  a 
table  can  only  be  constructed  on  two  sets  of  principles. 
Either  it  may  be  framed  on  physiological  considerations,  or 

'  See  McLennan's  Primitive  Marriage,  reprinted  in  his  Studies  iit  Ancient 
History,  London,  1876. 


CIVIL   MARRIAGE   OF    NATIVES  293 

on  considerations  arisiiif^  from  the  feelings — or,  it  may  be, 
prejudices — of  the  community  affected.  No  doubt  our  Eng- 
hsh  table  is  very  much  more  liberal  than  any  that  could  be 
framed  for  India.  But  it  can  hardly  be  said  to  be  constructed 
on  physiological  principles,  for  if  it  were  I  presume  a  man 
would  be  allowed  to  marry  his  deceased  wife's  sister,  and  it  is 
probable  that  the  marriages  of  first  cousins  would  be  pro- 
hibited. Everybody  knows  that  this  permission  and  prohi- 
bition are  always  defended  on  peculiarities  in  the  social 
organisation  of  Western  society.  I  will  further  allege,  as  a 
reason  for  the  provision  I  suggest,  that  when  civil  marriage 
was  introduced  into  England  about  forty  years  ago  the  area 
of  inter-marriage  was  not  enlarged.  A  man  could  no  more 
than  before  marry  his  deceased  wife's  sister,  nor  could  a  per- 
son, ecclesiastically  divorced,  marry  without  a  special  Act  of 
Parliament.  European  precedents  are,  therefore,  in  favour  of 
the  course  which  I  am  inclined  to  propose,  and  which  amounts 
to  limiting  the  measure  for  the  present  to  the  relief  of  con- 
science. I  do  not  deny  that  this  change  will  to  some  extent 
diminish  the  liberality  of  the  Bill,  but  it  removes  a  very 
serious  difficulty,  and  I  find  that  the  Brahmos  themselves  do 
not  wish  the  power  of  inter-marriage  to  be  enlarged,  having 
always  confined  themselves  within  the  boundaries  of  the 
existing  laws.  I  believe,  too,  that  our  honourable  colleague 
the  Maharaja  of  Balrampi'ir  will  have  his  only  objection  to 
the  Bill  removed  by  this  alteration.  It  is  necessary,  how- 
ever, for  me  to  say  that  the  section  I  suggest  must  be  very 
carefully  framed.  The  prohibition  of  marriage  which  it  will 
recognise  must  not  be  one  dependent  on  the  performance 
of  any  religious  ceremonial,  or  the  whole  measure  may  be 
defeated. 

Sir,  I  have  to  state  in  conclusion  that,  in  my  humble 
opinion,  there  can  be  no  worse  penalty  on  improper  mar- 
riages than  the  disallowance  of  such  marriages.  Such  a 
penalty  has  almost  no  characteristic  which  should  distinguish 
a  penalty.  As  regards  those  persons  who  directly  join  in  the 
supposed  offence,  it  falls  on  the  more  scrupulous  and  leaves 
the  less  scrupulous  untouched.  But  in  fact  it  hardly  falls  on 
the  supposed  offenders  at  all.      It  is  really  imposed  on  the 


294  SPEECHES   OF   SIR   HENRY   MAINE 

children,  who  are  dishonoured  through  Hfe  for  an  offence  in 
which  they  could  not  possibly  have  participated.  If  it  be. 
really  necessary  for  us  to  protect  the  Native  religions  by  for- 
bidding marriages  not  celebrated  with  their  rites,  it  is  much 
better  that  we  should  effect  this  by  any  direct  civil  penalty — 
or,  if  necessary,  criminal  penalty — rather  than  by  the  disallow- 
ance of  the  marriage. 

The  Bill,  with  some  modification,  became  law  as  Act  III.  of  1872, 
to  provide  a  form  of  marriage  in  certain  cases.  It  applies  only  tc 
persons  who  do  not  belong  to  the  Christian,  Jewish,  Hindu, 
Muhammadan,  Parsi,  Buddhist,  Sikh,  or  Jaina  religion. 


EVIDENCE 
December  4,  1868. 

Down  to  1872  the  courts  of  India,  except  in  the  presidency  towns, 
had  hardly  any  fixed  rules  of  evidence,  save  those  contained  in  Acts 
XIX.  of  1853  and  II.  of  1855.  The  result  was  that,  in  the  Mufassal, 
the  discretion  of  judges  in  declaring  facts  proved  or  disproved  was 
practically  unlimited  ;  decisions  were  delayed  for  an  unconscionable 
time  ;  needless  vexation  and  expense  were  caused  to  litigants  ;  and 
injury  to  the  State  or  the  public  sometimes  arose  from  the  absence  of 
rules  as  to  official  communications,  and  information  as  to  the  com- 
mission of  offences.  Under  these  circumstances,  the  Commissioners 
appointed  in  England  to  prepare  a  body  of  substantive  lav/  for  India 
(disregarding  the  fact  that  evidence  belongs  to  the  department  of 
adjective  law)  prepared  a  Bill  to  define  and  amend  the  law  of 
evidence.  When  moving  that  this  Bill  be  referred  to  a  select 
committee  Mr.  Maine  said  that 

the  Council  were  no  doubt  aware  that,  on  referring  a  Bill 
to  a  select  committee,  what  was  affirmed  was  the  principle 
of  the  measure  or  the  expediency  of  legislation  within  the 
general  principles  of  the  measure.  This  being  understood, 
Mr.  Maine  did  not  suppose  that  the  Council  would  ever 
seriously  think  of  refusing  to  refer  to  a  select  committee  a 
Bill  prepared  by  the  Indian  Law  Commissioners,  and  there- 
fore he  should  say  very  little  in  commending  it  to  the  Council. 
The  consideration  of  the  measure  was  essentially  a  con- 
sideration of  its  detail,  and  to  that  detail    the   select  com- 


EVIDENCE  295 

mittec  would  doubtless  give  the  most  careful  attention,  not, 
as  Mr.  Maine  hoped,  for  the  purpose  of  setting  its  judgment 
against  the  judgment  of  the  Commissioners  in  matters  which 
lay  legitimately  within  the  sphere  of  their  great  judicial  and 
forensic  experience,  but  for  the  purpose  of  seeing  whether 
their  specific  proposals  required  in  any  way  restriction  or  ex- 
tension with  regard  to  the  special  circumstances  and  facts  of 
this  country. 

On  the  general  expediency  of  obtaining  a  codified  law  of 
evidence  for  India,  Mr.  Maine  did  not  suppose  that  there 
could  be  two  opinions.  He  ventured  to  think  that  the  Com- 
missioners had,  if  anything,  rather  understated  the  grounds 
on  which  such  a  law  was  desirable.  They  observed  that 
India  did  not  possess  any  uniform  law  on  the  subject.  After 
stating  that  within  the  presidency  towns  the  English  law  of 
evidence  was  in  force,  modified  by  certain  Acts  of  the  Indian 
Legislature  of  which  Act  II.  of  1855  was  the  most  important, 
they  went  on  to  say  that  a  customary  law  of  evidence  pre- 
vailed in  those  parts  of  British  India  where  English  law  was 
not  administered.     '  This  customary  law,'  they  added, 

'  has  not  assumed  any  definite  form;  the  Muhammadan  law,  since  ^  x 
the  enactment  of  the  new  Code  of  Criminal  Procedure,  has  ceased  0-'  '' 
to  have  any  validity  in  the  country  courts,  even  in  criminal  matters  ; 
and  those  courts  have  in  fact  no  fixed  rules  of  evidence  except  those 
contained  in  Act  II.  of  1855.  They  are  not  required  to  follow  the 
English  law  as  such,  although  they  are  not  debarred  from  following 
it  where  they  regard  it  as  the  most  equitable.' 

On  looking,  however,  at  the  two  Indian  Evidence  Acts, 
it  would  seem  that  they  implied  that  the  English  law  of  evi- 
dence, except  where  they  modified  it,  was  in  force  in  the  bulk 
of  India,  the  Mufassal.  During  the  last  ten  or  fifteen  years 
the  doctrine  that  the  English  law  of  evidence  was  vi  propria 
in  force  thoughout  the  whole  of  the  country  had  certainly 
gained  strength,  and  the  habit  of  applying  that  law  with  in- 
creasing strictness  was  gaining  ground.  No  doubt  much 
evidence  was  received  by  the  Mufassal  courts  which  the  Eng- 
lish courts  would  not  regard  as  strictly  admissible.  But  Mr. 
Maine  would  appeal  to  Members  of  Council  who  had  more 
experience  in  the  Mufassal  than  he  had,  his  honourable  friends 


296  SPEECHES   OF   SIR   HENRY   MAINE 

Sir  George  Coupcr  and  Mr.  Cockcrcll.  whether  the  judges  of 
those  courts  did  not  as  a  matter  of  fact  beheve  that  it  was 
their  duty  to  administer  the  English  law  of  evidence  as 
modified  by  the  Evidence  Acts.  In  particular,  Mr.  Maine 
was  informed  that  when  a  case  was  argued  by  a  barrister 
before  a  Mufassal  judge,  and  when  the  English  rules  of 
evidence  were  pressed  on  his  attention,  he  did  practically 
accept  those  rules,  and  admit  or  reject  evidence  according 
to  his  construction  of  them. 

Mr.  Maine  could  not  help  regarding  this  state  of  things 
as  eminently  unsatisfactory.  He  entirely  agreed  with  the 
Commissioners  that  there  were  parts  of  the  English  law  of 
evidence  which  were  not  suited  to  this  country.  They  heard 
much  of  the  laxity  with  which  evidence  was  admitted  in  the 
Mufassal  courts  ;  but  the  truth  was  that  this  laxity  was  to  a 
considerable  extent  justifiable.  The  evil,  it  appeared  to  Mr. 
Maine,  lay  less  in  admitting  evidence  which  under  strict 
^rules  of  admissibility  should  be  rejected,  than  in  admitting 
)and  rejecting  evidence  without  fixed  rules  to  govern  admission 
,and  rejection.  Anything  like  a  capricious  administration  of 
the  law  of  evidence  was  an  evil,  but  it  would  be  an  equal,  or 
perhaps  even  a  greater,  evil  that  such  strict  rules  of  evidence 
should  be  enforced  as  practically  to  leave  the  court  without 
the  materials  for  a  decision.  Mr.  Maine  would  venture  ta 
state  his  impression  that  the  fault  of  substance  ordinarily 
committed  by  the  Mufassal  Courts  consisted  less  in  lax  ad- 
mission of  evidence  than  in  averting  their  attention  from  the 
evidence  really  before  them,  and  in  conjecturing  the  facts  of 
the  case  upon  probabilities  derived  from  a  consideration  of 
what  the  Natives  of  this  country  would  be  likely  to  do  under 
given  circumstances.  Another  objection  lay  in  the  necessity 
which  the  Mufassal  judges  were  thus  placed  under  of  de- 
pending upon  English  text-books.  There  were  excellent 
text-books  of  the  English  law  of  evidence,  but  their  useful- 
ness consisted  more  in  refreshing  knowledge  which  had  been 
gained  by  forensic  experience  than  in  teaching  knowledge. 
The  Commissioners  would  appear  to  be  right  in  supposing 
that  what  was  wanted  for  the  greatest  part  of  India  was  a 
liberalised  version   of  the  English   law  of  evidence,  enacted 


EVIDENCE  297 

with  authority,  and  thus  cxchiding  caprice,  and  superseding 
the  use  of  text-books  by  compactness  and  precision. 

Another  objection  which  Mr.  Maine  entertained  to  the 
present  state  of  the  law  might  appear  to  be  speculative,  but 
was  really  of  some  practical  moment.  The  doctrine  that 
the  English  law  of  evidence  without  authoritative  enactment 
prevailed  vi propria  and  of  its  own  virtue,  was  calculated  to 
encourage  the  notion  that  rules  of  evidence  constituted  a 
scientific  machinery  by  which  truth  as  to  facts  and  as  to 
men's  actions  could  be  ascertained  somewhat  as  physical 
truths  could  be  ascertained  by  the  processes  in  use 
amonsf  men  of  science.  There  were  certain  Continental 
systems  of  evidence  which  did  make  a  pretension  to  include 
a  process  of  the  kind.  And  perhaps  some  such  theory  did 
pervade  the  rules  of  the  English  law  with  regard  to  pre- 
sumptions, which  he  was  happy  to  see  the  Commissioners  had 
discarded.  But  the  English  law  of  evidence  as  a  whole  made 
no  claim  to  be  such  a  system.  It  w^as  justly  regarded  by 
English  lawyers  as  a  model  of  good  sense  ;  but  it  would 
probably  have  never  come  into  existence  but  for  one 
peculiarity  of  the  English  judicial  administration — the  sepa- 
ration of  the  judge  of  law  from  the  judge  of  fact,  of  the 
judge  from  the  jury.  It  consisted  mainly  of  rules  of  exclusion 
— that  is,  of  rules  for  keeping  certain  kinds  of  evidence  out  of 
sight  of  the  judge  of  fact.  Such  a  system,  Mr.  Maine  appre- 
hended, could  only  be  justified  on  two  grounds.  First  of  all 
some  evidence  must  be  excluded.  If  all  evidence  were  ad- 
mitted— nay,  even  if  all  relevant  evidence  were  admitted — if 
everything  were  let  in  which  tended  to  throw  light  on  the 
matters  in  issue,  the  courts  would  be  overwhelmed.  Even 
in  England  they  would  break  down,  and  it  would  be  quite 
impossible  for  the  courts  to  discharge  their  functions  in  this 
country  with  the  notorious  habit  of  its  Natives  of  attempting 
to  help  on  the  proof  by  accumulating  everything  which  has 
even  the  remotest  bearing  on  it.  It  being,  then,  assumed  that, 
under  the  actual  conditions  of  judicial  inquiry,  some  sorts  of 
evidence  must  necessarily  be  shut  out,  the  English  law  ex- 
cluded those  descriptions  of  evidence  which  were  found 
practically  to  affect  the  minds  of  all  men,  except  those  of  the 


298  SrEECHES   OF   SIR   HENRY   MAINE 

most  sagacious  judgment,  out  of  all  proportion  to  the  real 
value  of  such  evidence.  This  was  the  case  of  the  great  de- 
partment known  to  English  lawyers  as  'hearsay.'  It  was  not 
at  all  meant  that  hearsay  evidence  was  not  incidentally 
valuable,  and  Mr.  Maine  could  well  imagine  a  great  Indian 
statesman  conducted  in  an  emergency  to  a  most  important 
conclusion  by  evidence  which  a  court  of  justice  would  reject 
as  absolutely  inadmissible.  But,  taking  men  as  you  found 
them,  and  taking  the  average  of  judicial  ability,  it  was  really 
true  that  some  kinds  of  evidence  did  produce  an  impression 
on  the  mind  far  deeper  than  was  consistent  with  their  real 
weight.  The  good  sense  to  which  the  English  law  laid  claim 
was  evinced  by  the  tests  which  it  laid  down  for  distinguishing 
those  kinds  of  evidence  from  those  which  remained.  It  would 
be  presumptuous  in  Mr.  Maine  to  praise  the  Commissioners' 
proposals  ;  but  he  ventured  to  say  that,  in  his  humble  opinion, 
they  had  wisely  availed  themselves  of  the  results  of  English 
experience,  but  had  wisely  modified  those  results  upon  two 
considerations,  which  they  stated  as  follows  : — 

'  The  English  practice  has  been  moulded  in  a  great  degree  by 
our  social  and  legal  institutions,  and  our  forms  of  procedure  ;  and 
much  of  it  is  admitted  to  be  unsuited  to  the  various  states  of  society, 
and  the  different  forms  of  property  which  are  to  be  met  with  in  India. 

'  In  a  country  like  India,  where  the  task  of  judicial  investigation 
is  attended  with  peculiar  difficulties,  and  where  it  is  the  duty  of  the 
Judge  in  all  civil,  and  in  some  criminal,  cases  to  decide  without  a 
jury,  there  is  greater  danger  of  miscarriage  from  the  mind  of  the 
court  being  uninformed  than  from  its  being  unduly  influenced  by 
the  information  laid  before  it.' 

Mr.  Maine  had  said  that  he  would  not  comment  on  the 
details  of  the  measure  ;  but  there  was  one  point  of  detail  which 
it  was  necessary  to  notice,  because,  as  it  involved  a  financial 
question,  the  select  committee  would  probably  not  like  to 
deal  with  it  without  knowing  the  opinion  of  the  Executive 
Government.  The  Commissioners'  draft,  and  the  Bill  based 
upon  it,  saved  the  Registration  Act ;  but  it  would  be  observed 
that  they  did  not  refer  to  the  Stamp  Act.  The  omission  in 
the  Bill  was  explained  by  its  being  doubtful  whether  the  Stamp 
Bill  now  in  the  hands  of  Mr.  Cockerell  would  or  would  not 


EVIDENCE  299 

receive  the  assent  of  the  Governor  General  before  the  pre- 
sent measure.  If  the  Stamp  Bill  were  passed  last,  it  would 
control  the  present  measure.  But  another  reason  must  pro- 
bably be  assigned  for  the  omission  in  the  Commissioners' 
draft,  which  appeared  to  be  deliberate.  Mr.  Maine  found 
that  the  last  paragraph  of  their  third  Report,  on  the  Law  of 
Negotiable  Instruments,  was  to  the  following  effect : — 

'  Negotiable  instruments  have  recently  been  subjected  to  a  stamp 
duty  in  British  India  by  an  Act  which,  like  the  English  Stamp  Act, 
renders  instruments  invalid  if  its  regulations  are  not  observed.  This 
provision  of  the  English  Stamp  Act  has  led  to  the  establishment  of 
several  rules  and  distinctions  not  unattended  with  inconvenience, 
and  we  would  suggest  that  a  law  which  merely  imposed  a  penalty  in 
case  of  infringement  would  be  more  conducive  to  the  public  interests. 
For  the  present  we  have  thought  it  our  best  course  to  frame  our  rules 
irrespectively  of  the  stamp  law.' 

Now,  from  the  Commissioners'  point  of  view,  which  was 
the  purely  juridical  point  of  view,  there  was  no  doubt  that 
simplicity  would  be  attained  by  the  course  proposed.  But 
what  would  be  the  practical  effect?  His  honourable  friend 
Mr.  Cockerell  had  had  a  vast  mass  of  papers  before  him  relat- 
ing to  the  operation  of  the  Stamp  law.  Mr.  Maine  appealed 
to  him  whether  the  following  was  not  a  fair  inference  from 
those  papers.  If  effect  were  given  to  the  Commissioners' 
suggestion,  either  there  would  be  an  enormous  evasion  of  the 
law,  or  that  evasion  would  be  prevented  by  recourse  to  the 
criminal  courts  for  the  enforcement  of  penalties  to  an  extent 
which  would  itself  be  a  greater  evil  than  the  sacrifice  of  any 
branch  of  revenue.  Under  those  circumstances,  the  point 
had  been  considered  by  the  Executive  Government,  and  Mr. 
Maine  had  to  state  that,  having  regard  to  the  fact  that  the 
stamp  duties  on  commercial  instruments  were  easily  levied, 
and  did  not  press  hardly  on  the  people,  the  Government  was 
not  prepared  to  give  up  that  portion  of  the  public  receipts. 

The  motion  was  put  and  agreed  to. 

The  Bill  was  published  and  circulated  in  the  usual  way.  But  it 
was  held  by  high  Indian  authorities  to  be  both  incomplete  and  ill- 
arranged  ;  it  was  not  elementary  enough  for  the  judicial  officers  for 


300  SPEECHES   OF   SIR   HENRY   MAINE 

whose  use  it  was  designed,  and  it  assumed  an  acquaintance  with 
the  law  of  England  which  could  scarcely  be  expected  from  them. 
For  these  reasons  it  was  withdrawn,  and  the  Indian  law  on  the 
subject  is  now  contained  in  Act  I.  of  1872,  a  measure  framed  by 
Mr.  (now  Sir  Fitzjames)  Stephen,  its  amending  Acts,  and  a  host  of 
special  and  local  laws. 


MINUTES 


Most  of  the  following  minutes  are  taken  from  a  collection  of  one 
hundred,  which  was  made  in  1890  by  the  Secretary  to  the  Legisla- 
tive Department  of  the  Government  of  India,  and  printed  at 
Calcutta  in  the  same  year  by  the  Superintendent  of  Government 
printing.  This  collection  was  never  published,  and  is  of  extreme 
rarity.  These  minutes  may  be  regarded  as  fairly  representing 
Mr.  Maine's  many-sided  labours  in  his  executive  capacity.  But 
it  is  hardly  necessary  to  say  that  reasons  of  State  preclude  the 
publication  of  some  which  he  wrote  for  the  Foreign  Department. 
The  minute  on  the  Educational  service,  and  that  on  the  trial,  &c., 
of  European  British  subjects  under  jurisdiction  assumed  by  Native 
States,  are  printed  from  copies  found  after  his  death  among  Sir  Henry 
Maine's  papers.  The  minute  on  the  selection  and  training  of  the 
candidates  for  the  Indian  Civil  Service  was  written  in  England,  and 
is  now  reprinted  from  pp.  305-309  of  the  Blue-book  dealing  with  this 
subject,  which  was  presented  to  Parliament  in  1876. 

In  arranging  the  minutes  now  published  the  chronological  order 
has  been  followed. 

A  despatch  drafted  by  Mr.  Maine  in  1868,  which  resulted  in 
the  enactment  of  the  Statute  ;^;^  Vic.  c.  3,  and  a  memorandum  on 
Mr.  Caird's  report  on  the  condition  of  British  India,  have  been 
treated  as  minutes  and  inserted  in  their  proper  places. 


SUSPENSION  AND   REMISSIONS   OF  SENTENCES^ 

NOVEiMBER    29,    1862. 

I  CONCUR  with  Mr.  Harington  that  the  power  of  pardon, 
and  the  other  powers  which  it  includes,  are  incapable  of  direct 
delegation,  unless  under  the  provisions  of  an  express  enact- 

'  The   Indian   law  relating  to  sus-       Code  of  Criminal  Procedure,  sees.  401 
pensions,  remissions,  and  commutations       and  402. 
of  sentences  is   now  contained  in  the 


302  MINUTES 

ment.  This  is  a  universal  rule  of  civilised  jurisprudence,  and 
the  reason  assigned  for  it  by  the  older  jurists  is  that  the  exe- 
cutive governor  enjoys  this  privilege  as  the  lieutenant  of  the 
Deity,  so  that  the  legal  maxim  applies  '  delegatus  non  potest 
delegare.'  The  theory,  however,  has  not  prevented  the  dele- 
gation of  the  power  in  many  countries  through  the  medium 
of  legislation,  and  of  course  it  is  virtually  set  aside  when,  as 
in  England,  the  sovereign  systematically  follows  the  recom- 
mendation of  a  particular  functionary. 

The  Secretary  is  no  doubt  correct  in  his  impression  that 
the  line  of  demarcation  between  the  executive  and  judicial 
exercise  of  the  power  of  pardon  is  evanescent.  Its  tendency 
to  become  so  has  long  displayed  itself  in  England,  and 
increases  every  day.  Originally,  as  might  be  inferred  from 
the  old  theory,  the  exercise  of  the  power  was  matter  of  grace 
and  favour ;  more  recently  it  came  to  be  controlled  by  con- 
siderations of  State  policy  or  popular  sentiment ;  and  now  at 
length  it  is  rapidly  becoming  identified  with  a  rehearing  of 
the  whole  case  before  the  Home  Secretary. 

I  believe  that  this  state  of  things  is  felt  in  England  to  be 
eminently  unsatisfactory.  The  Home  Secretary  has  of  late 
years  always  been  a  lawyer,  principally  because  the  conduct 
of  these  investigations  has  become  one  of  his  most  important 
duties.  He  is,  however,  necessarily  deprived  of  what  in 
England  is  considered  the  best  of  all  helps  to  a  correct 
decision,  the  opportunity  of  observing  the  demeanour  and 
language  of  the  witnesses  and  prisoner.  The  disadvantage 
under  which  he  is  placed  is  felt  to  be  so  great  that  proposals 
have  been  made — and,  I  understand,  seriously  entertained — 
for  substituting  a  formal  new  trial  before  a  Committee  of  the 
Privy  Council  for  the  intervention  of  the  Home  Secretary. 

In  India  the  system  of  trying  men  on  paper  has  long 
prevailed,  and  it  may  well  be  that  functionaries  long  accus- 
tomed to  it  may  have  acquired  a  special  faculty  of  interpreting 
written  evidence  which  could  not  be  obtained  by  ordinary 
experience.  But  I  must  say  I  think  it  a  hard  and,  I  may 
add,  a  very  painful  task  for  the  Governor  General,  and,  in 
cases  where  his  Council  is  consulted,  for  Members  of  Council 
unused  to  Indian  practice,  to  have  to  decide  capital  questions 


SUSPENSION    AND    REMISSIONS   OF    SENTENCES  303 

in  the  last  resort  upon  materials  which,  judged  by  an  English 
standard,  must  be  deemed  necessarily  imperfect.  The  inhe- 
rent difificulty  must  be  faced  occasionally — for  instance,  when 
proceedings  of  a  court-martial  are  submitted  for  approval  ;  but 
I  own  I  look  with  dismay  on  the  effect  of  the  present  state  of 
the  law  on  the  Governor  General's  position.  It  seems  that 
the  recent  extension  of  the  Judicial  Commissioner's  powers 
wull  frequently  render  it  necessary  for  the  Executive,  as 
possessing  the  power  of  pardon,  to  review  quasi-judicially  the 
decisions  of  this  functionary  in  all  non-regulation  provinces 
to  which  the  Code  of  Criminal  Procedure  has  been  extended  ; 
and  it  appears  further  that  in  one  only  of  such  provinces  is  it 
certain  that  the  Chief  Commissioner  possesses  the  pardoning 
power.  The  Governor  General,  therefore,  or  the  Governor 
General  in  Council,  is  in  some  danger  of  becoming  a  regular 
Appellate  Judge.  If  he  has  to  discharge  such  functions,  he 
will  be,  it  must  be  observed,  in  a  much  worse  position  than 
the  Home  Secretary  in  England,  for  trials  in  England  are 
universally  conducted  by  a  Judge  and  jury  together,  and  the 
Secretary  of  State  has  always  the  power  of  asking  the  Judge, 
apart  from  the  jury,  whether  he  is  satisfied  with  the  verdict. 
But,  whenever  the  Governor  General  has  to  exercise  judicial 
under  the  guise  of  executive  functions,  he  has  in  effect  to 
decide  an  appeal  from  Judges  who  have  been  acting  as  Judges 
both  of  fact  and  of  law. 

Where  the  Chief  Commissioner,  as  in  Oudh,  is  invested 
with  the  power  of  pardon  there  will  be  no  difficulty,  as 
Mr.  Harington  has  remarked.  Where,  however,  he  has  no 
such  power,  I  would  suggest  that  the  Governor  General 
should,  at  all  events  to  a  great  extent,  regard  him  as  the 
Sovereign  at  home  regards  the  Home  Secretary  ;  that,  where 
his  intervention  is  called  for  by  petition  or  otherwise  he  should 
be  required  to  investigate  the  case  and  state  his  opinion,  and 
that  his  opinion  should  ordinarily,  if  not  always,  be  adopted 
by  the  Supreme  Government. 


304 


MINUTES 


March  io,  1863. 


I  DO  not  think  it  would  be  illegal  for  the  Governor  General, 
without  the  sanction  of  any  legislative  enactment,  to  direct 
such  Chief  Commissioners  as  have  not  the  power  of  pardon 
to  suspend  the  execution  of  sentences  in  case  of  necessity 
until  the  pleasure  of  the  supreme  pardoning  authority  is 
known. 

I  presume  that  the  question  is  only  put  to  me  with  refer- 
ence to  capital  sentences. 

Reprieves,  which  are  suspensions  of  the  execution  of 
sentences,  though  closely  connected  with  pardons,  do  not 
stand  on  precisely  the  same  footing.  In  England  the  King 
alone  can  pardon,  but  the  old  Statute  (27  Henry  VIII.  c.  ii), 
which  declares  a  rule  common  to  all  modern  systems  of  law, 
applies  to  pardons  and  remissions  of  sentences  only,  not  to 
reprieves.  Many  reprieves  are  in  fact  granted  without  the 
sanction  of  the  Crown.  A  Judge  can  reprieve  a  convict  even 
after  he  has  passed  sentence,  if  he  thinks  the  pleasure  of  the 
Crown  should  be  appealed  to,  and  he  can  do  this  even  after 
closing  his  commission.  Sometimes  a  reprieve  can  be  claimed 
on  behalf  of  a  prisoner  as  of  right ;  for  instance,  where  a  female 
convict  is  pregnant  or  where  a  convict  after  judgment  becomes 
insane.  Nor  do  I  doubt  that,  where  a  functionary  in  England 
charged  with  the  execution  of  a  capital  sentence — such  as  a 
sheriff — bona  fide  believes  that  if  certain  circumstances  con- 
nected with  the  convict  were  known  to  the  Crown  it  would 
extend  to  such  convict  its  clemency,  he  would  be  held  justi- 
fied in  deferring  execution  till  the  pleasure  of  the  Crown  should 
be  ascertained. 

The  state  of  English  law  appears  to  me  a  sufficient  guide 
in  the  application  of  general  principles  to  India.  Every  power 
distinctly  conferred  implies  the  existence  of  powers  necessary 
to  its  exercise,  and  the  pardoning  power,  wh,ich  is  looked 
upon  with  peculiar  favour  in  jurisprudence,  draws  with  it  all 
powers  clearly  ancillary  to  it,  and  among  these  appears  to  me 
to  be  the  power  of  directing  local  authorities  to  suspend  the 
execution  of  sentences  in  cases  where  particular  circumstances 


SERVITUDE   IN    OUDH  305 

(such  as  difficulties  of  communication  and  distances  in  India) 
occasion  delay  in  ascertaining  the  pleasure  of  the  Supreme 
Government. 

1  think,  therefore,  that  the  Governor  General  may  legally 
issue  such  an  order  as  is  contemplated  in  His  Excellency's 
note,  and  I  am  able  to  say  that  Mr.  Harington  concurs  in 
this  view. 

Of  course  this  species  of  reprieve  should  only  be  granted 
on  clear  occasion,  and  I  would  suggest  that,  as  in  the  English 
Home  Office,  such  business  should  always  be  taken  up  at 
once,  and  the  report  of  the  Chief  Commissioner  forwarded  to 
His  Excellency  with  as  much  despatch  as  maybe  practicable, 
in  order  that,  if  possible.  His  Excellency's  decision  should  be 
notified  within  the  ordinary  time  for  the  execution  of  the 
sentence.  It  is  obvious  that  the  ordinary  course  of  justice 
should  be  interrupted  as  sparingly  as  may  be. 

The  communication  of  the  Chief  Commissioner  who  re- 
prieves a  prisoner  should  be  addressed  to  the  executive  officer 
charged  with  carrying  out  the  sentence  ;  and,  even  if  this 
officer  have  judicial  powers,  it  should  be  addressed  to  him  in 
his  executive  capacity. 

SERVITUDE  IN  OUDH 

May  25,  1863. 

It  is  almost  impossible  to  form  a  clear  opinion  on  the  ques- 
tions raised  in  these  papers  without  seeing  the  actual  contracts 
to  which  they  refer.  Almost  everything  will  depend  on  the 
phraseology  of  the  particular  contract,  and  a  good  deal  on  the 
form  of  the  suit.  Some  principles  may,  however,  be  laid 
down. 

An  agreement  to  be  a  man's  serf  or  slave  is  invalid  in 
law,  both  as  being  against  public  policy  and  in  most  cases  as 
amounting,  on  the  part  of  the  contractee,  to  the  offence  made 
punishable  by  the  370th  section  of  the  Penal  Code.  It  is  not 
very  easy  to  frame  a  contract  in  English  which  would  come 
within  this  description,  but  I  can  quite  conceive  such  an 
agreement  in  India.  If,  for  example,  there  had  once  existed 
in  Oudh  or  elsewhere  a  system  of  undoubted  slavery  which 

X 


3o6  MINUTES 

had  become  illegal  from  the  introduction  of  our  laws  or  from 
some  other  cause,  and  if  a  contract  were  made  which  by  its 
terms  or  its  language  placed  one  of  the  parties  in  the  exact 
position  in  which  he  would  have  been  placed  as  a  slave  while 
acknowledged  slavery  lasted,  then  such  a  contract  would  b6 
entirely  bad  in  law,  and  no  damages  would  be  recoverable  for 
its  breach. 

But  a  mere  contract  to  serve,  that  is,  to  render  services, 
whether  domestic  or  agricultural,  is  perfectly  legal  without 
reference  to  the  period  for  which  it  is  made.  If  it  be  for  an 
unlimited — that  is,  an  indefinite — time,  then,  as  the  first  orders 
of  Government  correctly  stated,  it  will  be  presumed  to  be  for 
a  single  year.  But  if  definiteness  be  given  to  the  period  by 
agreeing  to  serve  for  a  term  of  ninety-nine  years  or  for  life,^ 
the  contract  will  still  be  good,  and  no  such  presumption  as 
that  just  mentioned  will  arise.  So  far  I  concur  with  the 
Advocate  General.  When,  however,  Mr.  Cowie  goes  on  to 
say  that  damages  for  the  breach  of  such  contracts  must  be 
calculated  with  reference  to  the  period  of  limitation,  although 
I  do  not  dispute  the  literal  truth  of  the  proposition,  I  think  it 
requires  explanation.  The  English  writers  on  the  law  of 
contract,  one  of  whom  is  quoted  by  Mr.  Harington,  hardly 
notice  contracts  to  serve  for  life  or  ninet}'-nine  years  (if  one 
so  long  live).  They  merely  say  that  such  agreements  are  not 
illegal,  but  add  that  they  are  so  improvident  ex  facie  that 
hardly  any  sum  would  be  too  small  to  award  as  damages  for 
their  breach.  Mr.  Cowie's  statement  must,  I  think,  be  taken 
as  true  only  of  the  maximum  damages  which  under  any  cir- 
cumstances can  be  awarded.  It  is  not  absolutely  true  that 
very  long  contracts  to  serve  are  necessarily  improvident. 
There  is  one  case  in  particular,  that  of  an  agreement  to  serve 
in  a  trade  which  is  conducted  on  a  trade  secret,  in  which  con- 
tracts to  serve  for  very  long  periods  are  not  uncommon  ;  fcr 
the  breach  of  such  contracts  as  these,  even  perhaps  when  they 
contemplate  service  for  the  whole  of  life,  it  might  be  proper 
to  take  the  period  of  limitation  as  a  guide  to  the  amount  of 
damages.     But  in  respect  of  such  contracts  as  are  described 

'  That   a  contract  to  serve  during       valid,  was  held  in    Wallis  v.    Day,   2 
one's  whole  life  a  particular  master  is       M.  &  W.  273,  i  Sni.  L.C.  361. 


SERVITUDE    IN    OUDII  307 

in  these  papers,  the  other  and  more  usual  rule  is  clearly,  I 
think,  the  one  to  be  followed,  and  the  smallest  possible 
damages  should  be  given  to  a  plaintiff  suing  on  their  breach. 

There  are,  however,  many  expressions  in  these  papers 
which  make  me  suspect  that  the  actual  contracts  on  which 
the  question  arises  do  not  take  so  simple  a  form  as  I  have 
been  supposing.  It  may  be  that  the  suits  mentioned  in  the 
papers  are  not  suits  directly  instituted  to  enforce  agreements 
to  serve,  but  are  merely  suits  to  recover  bond-debts,  the 
defendant  being  in  fact  bound  to  labour,  not  by  express 
agreement,  but  simply  by  the  compulsion  of  his  debt,  which 
is  kept  hanging  over  him.  Or,  again,  the  defendant  may 
have  acknowledged  that  he  owes  a  certain  sum  and  may 
have  contracted  to  work  it  off  at  a  certain  rate.  In  the  first 
case,  unless  some  independent  defence  can  be  pleaded  to  the 
suit  the  decree  for  payment  of  the  debt  must  be  passed 
against  the  defendant ;  in  the  last  case,  the  decree  can  only 
be  for  payment  subject  to  an  account  for  the  sum  worked  off. 

On  the  assumptions  I  have  just  made,  the  mischief  in 
Oudh  is  not  the  existence  of  any  particular  system  of  servitude, 
but  the  improvidence  (which,  I  need  not  say,  is  not  confined 
to  Oudh)  of  the  labouring  class  in  taking  advances  or  in 
acknowledging  debts  which  have  accumulated  at  usurious 
interest.  No  direct  relief  can  be  given  to  labourers  who  have 
thus  entangled  themselves,  but  indirectly  the  courts  in  Oudh 
could  probably  mitigate  oppression  by  bringing  it  to  the 
knowledge  of  the  labouring  class  that  no  man  is  bound  to 
take  upon  himself  advances  made  to,  or  debts  incurred  by,  his 
father,  otherwise  than  to  the  extent  of  any  assets  he  may 
have  receiveci  by  inheritance.  I  say  this  because  it  seems  to 
be  hinted  in  the  papers  that  the  debts  sometimes  descend 
from  father  to  son.  It  would  also  be  well  to  make  the  280th, 
281st,  and  282nd  sections  of  the  Code  of  Civil  Procedure  '  as 
notorious  as  possible,  under  which  a  very  simple  system  of 
bankruptcy  is  provided  for  debtors  under  one  hundred  rupees. 

Till  I  know  more  of  the  contracts  in  question,  and  more 
of  the  nature  and  extent  of  the  evil  complained  of,  I  am  not 
prepared  to  say  that  any  legislation  is  required.     If  the  con- 

'  The  Code  in  force  at  the  date  of  minute  was  Act  VIII.  of  1859. 

X  2 


308  MINUTES 

tracts  be  such  as  I  last  assumed  them  to  be,  the  only  legis- 
lative relief  admissible  would  take  the  shape  of  extending  the 
limit  of  bankruptcy. 

LEGAL  EDUCATLON  OF  CLVLL  SERVANTS 

December  2,  1863. 

I  CONCUR  in  Mr.  Harington's  conclusions,  and,  substantially, 
in  the  grounds  assigned  for  them.  If  there  is  any  part  of  his 
minute  to  which  I  feel  inclined  to  take  exception,  it  is  that 
in  which  he  palliates  (or  rather  his  authorities  palliate)  the 
deficiencies  of  the  Zila  Judges.  Complaints  about  persons 
do  not  readily  find  their  way  upon  paper,  but  if  I  am  to  judge 
from  the  course  of  conversation  in  India,  particularly  among 
gentlemen  who  are  themselves  acknowledged  to  be  the  best 
lawyers  in  the  service,  I  should  be  disposed  to  believe  either 
that  we  have  fallen  on  an  exceptional  period  in  respect  of  the 
qualifications  of  Zila  Judges,  or  that  the  executive  branch 
of  the  service  so  takes  precedence  of  the  judicial  as  to  absorb 
much  more  than  its  due  proportion  of  the  available  talent  in 
the  country.  The  last,  I  suppose,  is  the  true  explanation,  to 
judge  at  least  from  a  fact  which  came  to  my  own  knowledge. 
A  civil  servant,  to  whose  continuance  in  executive  employ- 
ment there  were  apparently  some  objections,  was,  about  six 
months  since,  appointed  by  the  Bengal  Government  to  a 
Judgeship  in  spite  of  his  energetic  protestations  of  his  incom- 
petency, and  even  his  avowals  of  his  ignorance  of  the  language 
in  which  justice  was  to  be  administered. 

Nor  can  I  quite  agree  in  the  supposed  simplicity  of  Indian 
law  as  compared  with  English.  I  suspect  that  this  simplicity, 
where  it  seemed  to  exist,  came  from  a  cause  which  is  ceasing 
to  operate — the  fact  that  there  were  not  legal  advisers,  pleaders 
and  advocates,  to  take,  on  behalf  of  litigants,  the  subtle  dis- 
tinctions of  which  no  law  admits  so  readily  as  a  law  which, 
like  that  of  India,  is  very  slightly  settled  and  ascertained. 
The  only  department  of  Indian  law  on  which  legal  ingenuity 
has  been  much  exercised — the  law  of  Revenue  and  Tenure 
in  Bengal — appears  to  me  as  difficult  and  intricate  as  any 
system  of  jurisprudence  in  the  world.     But  we  will  hope  that 


LEGAL   EDUCATION    OF   CIVIL   SERVANTS  309 

the  growing  intricacy  and  technicality  of  Indian  law  will  be 
obviated  by  the  true  remedy,  the  development  of  clearly- 
written  statute  law,  and  the  introduction  of  a  code  or  sub- 
stantive body  of  fundamental  rules. 

From  the  best  attention  I  have  been  able  to  give  to  the 
matter  I  have  come  very  decidedly  to  the  conclusion  that  the 
real  key  to  this  educational  difficulty,  which  is  very  real  and 
very  pressing,  is  to  be  found,  both  as  regards  law  and  language, 
not  in  India  but  in  England.  Make  what  rules  we  will,  this 
is  not  a  good  country  for  education,  which  will  always  here  be 
costly  and  inefficient.  The  presence  of  official  responsibility 
is  necessary  to  make  a  man  work  in  such  a  climate.  The 
only  alternative  is  to  keep  the  student-servants  somewhat 
longer  in  England,  to  which  detention  the  chief  objection  is 
that  it  adjourns  the  period  of  coming  out.  But  when  we 
have  once  sacrificed  the  undoubted  advantage  of  bringing 
youths  to  India  just  when  manhood  is  beginning — that  is,  at 
about  eighteen — I  find  that  the  best  Indian  physiological 
authorities  do  not  think  that  differences  of  a  year  or  two  in 
age  are  of  any  importance.  I  would  keep,  therefore,  the 
students  in  England  a  }-ear  longer,  and  would  have  that  year 
entirely  devoted  to  vernacular  languages  and  law.  As  soon 
as  they  come  here,  I  would  at  once  put  them  to  real  work  ; 
and  they  would  then  begin  the  only  education  which  is  effi- 
ciently carried  on  in  this  country — education  in  the  application 
of  knowledge  already  gained,  and  in  the  oral  use  of  languages 
already  learned. 

I  am  very  far,  indeed  (as  I  have  stated  elsewhere),  from 
undervaluing  the  legal  course  traversed  by  students  in  England 
during  their  year  of  probation.  But  the  defect  of  that  course 
is  that  it  is  somewhat  over-brief,  and,  as  might  be  inferred 
from  the  list  of  books  given  by  Mr.  Harington,  that  it  is  rather 
too  bookish  ;  this  last  is  a  material  fault  in  a  country  like 
England,  where  scarcely  any  legal  literature  exists  except 
manuals  for  practitioners.  I  am  inclined  to  suggest  that  (if 
the  subject  is  sufficiently  within  our  cognizance  for  us  to  take 
the  step)  the  Secretary  of  State  might  be  moved  to  enter  into 
communication  with  the  only  body  in  England  which  under- 
takes to  give  a  systematic  legal  education — the  Inns  of  Court. 


3IO  MINUTES 

They  have  a  very  competent  staff  of  teachers  and  lecturers  ; 
and  I  must  here  explain  that  the  remark  quoted  by  Mr. 
Harington  from  my  minute  is  meant  to  be  strictly  limited  to 
inferior  lecturers.  The  best  substitute  for  a  good  legal  educa- 
tional literature — which,  as  I  have  said,  does  not  exist  in 
England — is  a  skilful  lecturer  or  oral  teacher  ;  and,  if  proper 
arrangements  were  made,  there  would  be  no  difficulty  in 
extending,  under  the  superintendence  of  the  Inns  of  Court, 
that  most  valuable  portion  of  a  student-servant's  English 
training  which  consists  in  attending  courts  and  taking  notes 
of  cases. 

This  system  would  involve  the  Secretary  of  State  in  some 
additional  expense,  but  it  is  abundantly  clear,  from  Mr.  Har- 
ington's  figures,  that  the  Indian  Exchequer  would  save  largely 
on  the  whole.  It  would  further  involve  the  sacrifice  of  a 
principle  to  which  I  believe  that  the  Civil  Service  Commis- 
sioners are  inclined  to  adhere — the  principle  of  allowing  the 
young  men  to  prosecute  the  studies  of  their  year  of  probation 
in  any  part  of  the  country  which  may  be  most  convenient  for 
them.  But  bringing  the  students  to  London  to  learn  laws 
and  languages  well  is,  at  all  events,  preferable  to  bringing 
them  to  Calcutta,  Madras,  or  Bombay  to  learn  law  badly  and 
language  not  better  than  at  home. 

As  respects  the  Madras  proposal,  I  concur  in  Mr.  Haring- 
ton's  suggested  reply.  It  would  be  ungracious  to  refuse  the 
moderate  sum  asked  for  a  Law  Lecturer  if  that  part  of  the 
scheme  stood  by  itself;  but  the  other  branch  I  regard  as 
thoroughly  objectionable.  If  a  new  ofifice  is  created  in  the 
courts  for  the  training  of  students,  one  of  two  things  will 
follow  : — If  the  duties  are  real  and  actual,  the  young  man  will 
certainly  learn,  but  it  will  be  at  the  expense  of  the  suitors  ; 
if,  on  the  other  hand,  the  duties  are  nominal,  it  is  absolutely 
certain  that,  in  the  absence  of  that  stimulus  which  is  abso- 
lutely needed  for  work  in  this  country,  the  execution  of  the 
duties  will  be  as  merely  colourable  as  the  duties  themselves. 


311 


SMALL   CAUSE   COURTS 
February  22,  1864. 

These  statistics  of  the  Sadr  Court  at  Agra  fill  me  with 
dismay.  While  admitting  that  to  some  extent  they  are  ex- 
plained by  the  papers,  I  must  say  that,  so  far  as  the  figures 
are  concerned,  I  have  seen  nothing  resembling  them  except 
the  returns  representing  the  condition  of  the  unreformed  Court 
of  Chancery  in  England  nearly  a  century  ago  ;  and  on  behalf 
of  that  English  court,  whose  delays  passed  into  a  proverb,  I 
must  observe  that  it  had  to  apply  an  infinitely  more  intricate 
and  difficult  system  of  law  than  the  Agra  court  has  to  ad- 
minister, and  that  it  commanded  only  part  of  the  time  of  its 
principal  Judge  (the  Lord  Chancellor)  and  the  whole  time  of 
only  one  Judge  besides,  the  Master  of  the  Rolls. 

The  injustice  and  demoralisation  caused  by  such  a  con- 
dition of  judicial  business,  however  occasioned,  are  almost 
beyond  conjecture.  If  the  simple  consideration  be  taken  into 
account  that  in  every  suit  one  party  or  set  of  parties  must,  in 
some  sense,  be  in  the  right,  and  another  party  or  group  of 
parties  in  the  wrong,  the  heavy  injury  to  private  interests  and 
morality  inflicted  by  keeping  righteous  litigants  for  so  enor- 
mous a  time  from  the  enjoyment  of  what  should  be  theirs,  and 
maintaining  wrongful  litigants  in  the  enjoyment  or  expecta- 
tion of  what  should  not  be  theirs,  becomes  too  plain  a  matter 
for  illustration.  But  there  is  a  less  general  consideration, 
which  is  of  even  more  importance.  It  is  the  habit  of  the 
Native  mind  to  look  on  all  litigation  as  a  species  of  gambling. 
This  peculiarity  must  be  immensely  strengthened  by  these 
extraordinary  delays.  The  further  off  the  decision  in  a  suit 
is  pushed,  the  more  does  it  assume  the  air  of  a  chance.  We 
shall  never  prevail  on  the  Natives  to  think  that,  before  they 
institute  a  suit,  they  ought  to  consider  whether  they  have  the 
right  to  institute  it,  until  the  ultimate  decision  is  brought 
near  enough  to  be  reflected  upon. 

In  this  country  the  most  probable  result  of  such  an  arrear- 
age is  a  great  increase  of  that  widespread  immorality  which 
arises  from  the  comparative  incapacity  of  the  Natives  to  asso- 
ciate les:al  claims  with  moral  rights.      In   England  the  consc- 


312 


MINUTES 


quence  would  be  a  general  revolt  of  sentiment  against  the 
tribunal  which  was  unfortunate  enough  to  have  its  files  in 
such  a  state.  Though  the  English  Court  of  Chancery  has 
been  thoroughly  reformed  and  cheapened,  and  though  it 
administers  a  law  much  superior  in  many  respects  to  the 
jurisprudence  of  the  Courts  of  Common  Law,  it  has  never 
overcome  the  popular  disfavour  brought  upon  it  by  Lord 
Eldon's  dilatoriness ;  and  many  important  legal  rules  and 
proceedings  are  prevented  from  becoming  universal  because 
they  are  discredited  by  association  with  the  Court  of  Chancery. 

I  concur  in  all  of  Mr.  Harington's  specific  recommenda- 
tions. 

I  think  that  two  Benches,  each  of  two  temporary  Judges^ 
should  immediately  devote  themselves  to  clearing  off  the 
arrears.  If  our  Government  in  India  be  good  for  anything,  it 
ought  not  to  lose  a  moment  in  abating  so  abundant  a  source 
of  demoralisation.  This  will  involve  the  appointment  of  two 
more  temporary  Judges. 

I  think  also  that  a  fourth  permanent  Judge  should  be 
nominated,  in  order  that  the  services  of  the  three  existing 
permanent  Judges  may  be  properly  utilised.  Mr.  Harington's 
observations  on  this  point  seem  to  me  conclusive. 

It  will  be  well  that  the  Lieutenant  Governor  be  moved 
to  cause  the  Lower  Courts  to  confine  themselves  to  the  spirit 
of  the  Code  of  Civil  Procedure  in  respect  of  the  hearing  of 
original  suits.  I  do  not,  as  will  be  hereafter  seen,  think  the 
present  distribution  of  Courts  of  Appeal  and  of  First  Instance 
a  good  one  ;  but  the  system  will  not  be  improved  by  irregular 
departures  from  it. 

I  further  concur  with  Mr.  Harington  in  thinking  that,  in 
the  face  of  remonstrances  from  so  man}'  Courts  of  Appeal, 
we  cannot  carry  out  the  recommendation  of  the  Secretary  of 
State  as  to  the  disposing  of  applications  for  special  appeals  by 
a  single  Judge.  It  strikes  me,  too,  that  the  suggestion  is 
made  in  ignorance  of  the  great  change  which  has  recently 
taken  place  in  the  value  attached  to  isolated  judicial  rulings, 
since  the  establishment  of  the  High  Courts  and  the  introduc- 
tion of  a  better  (though  still  imperfect)  system  of  reporting. 

When    this    reference   goes  ultimately  to  the    Financial 


SMALL   CAUSE    COURTS  313 

Department,  it  is  impossible  that  the  largeness  of  the  outlay 
demanded  should  not  be  animadverted  upon.  I  am  bound 
to  say  that  it  is  not  the  last  claim  for  additional  expenditure 
on  Courts  of  Appeal  and  Revision  which  is  destined  to  come 
before  the  Government.  The  Lieutenant  Governor  of  the 
Panjab  has  made  an  application  for  a  second  Judicial  Com- 
missioner, and  the  criticisms  on  his  proposal  which  have  been 
received  would  appear  to  prove  that  not  only  a  second,  but 
a  third  Commissioner  is  required.  As  the  increase  of  litigation 
is  proportionate  to  wealth,  and  as  the  province  of  Oudh  is 
one  of  the  most  rapidly  advancing  portions  of  British  India, 
the  time  cannot  be  far  distant  when  the  highest  Appeal  Court 
of  Oudh  will  require  strengthening. 

What  I  look  forward  to  in  these  provinces,  if  no  change 
takes  place  in  the  Indian  judicial  system,  is  a  series  of  aug- 
mentations in  the  fixed  strength  of  the  courts,  combined  with 
a  series  of  spasmodic  efforts  to  clear  off  arrears  by  the  aid  of 
temporary  Judges.  There  is  a  chronic  tendency  towards 
arrears  in  the  Indian  Courts  of  Appeal,  from  causes  which  I 
will  presently  attempt  to  describe  ;  and  if  this  tendency  is 
less  likely  to  show  itself  hereafter  in  the  High  Court  of 
Bengal  than  in  other  Indian  tribunals,  it  is  because  those 
causes  are  combated,  so  far  as  the  power  of  the  Court  extends, 
by  remedies  which,  though  necessarily  inadequate,  are  }'ct 
applied  on  proper  principles. 

On  the  other  hand,  I  am  convinced  that,  if  the  Indian 
judicial  system  were  placed  on  a  proper  footing,  one  High 
Court  or  Sadr  Court  would  serve  for  the  whole  of  the  North- 
West,  Panjab,  and  Oudh,  and  might  exercise  a  much  more 
effectual  and  much  less  teasing  and  irritating  superinten- 
dence than  that  which  is  now  exercised  by  the  three  existing 
Courts  of  Appeal. 

I  am  bound  to  give  my  reasons  for  this  opinion,  which 
reasons  are  not,  as  it  appears  to  me,  of  a  kind  to  be  invalidated 
by  my  comparative  ignorance  of  the  country.  I  am  especially 
anxious  to  state  that  I  do  not  contemplate,  on  the  one  hand, 
the  coarse  expedient  of  merely  lopping  off  an  appeal  here 
and  there,  nor  on  the  other  hand  a  mere  revision  of  establish- 
ments— that  is,  a  shifting  and  exchanging  of  the  elements  of 


314  MINUTES 

which    the    system  is  now   composed    wit'nout    alteration    of 
principle. 

To  anybody  who  is  accustomed  to  the  criticism  of  judicial 
systems,  it  becomes  evident  on  very  short  examination  that 
the  Indian  system  is  founded  on  the  assumption  of  the  com- 
parative incompetence  of  the  Judge  of  First  Instance.  Every 
Judge  in  his  degree  has  somebody  placed  above  him,  and 
sometimes  a  series  of  persons,  whose  office  it  is  to  correct  his 
supposed  mistakes. 

So  far  as  this  assumption  relates  to  questions  of  law,  it 
cannot  be  called  untrue  ;  though  it  may,  in  some  cases,  be 
incidentally  false.  Every  judicial  system  ought  to  be  so 
arranged  that  each  Judge  should  be  more  competent  to  decide 
questions  of  law  than  the  Judge  below  him,  and  I  am  not  in 
a  position  to  say  that  the  Indian  system  is  not  so  arranged. 
I  have,  therefore,  no  quarrel  whatever  with  the  form  of  appeal 
known  as  a  special  appeal.  But,  so  far  as  the  assumption 
relates  to  questions  of  fact,  I  hold  it  to  be  a  delusion,  and 
based  on  a  false  theory  of  the  means  of  ascertaining  truth. 

I  do  not  believe  that  any  Judge,  of  whatever  power, 
patience,  and  ingenuity,  can,  when  sitting  in  appeal  and  re- 
moved from  actual  contact  with  the  witnesses,  successfully 
correct  the  mistakes  of  a  Judge  of  First  Instance,  unless  to  a 
very  slight  degree.  Except  in  physical  science,  there  is  no 
known  measure  of  the  truth  of  facts  except  the  aggregate  of 
the  impressions  made  on  the  minds  of  men  of  average  capa- 
city and  integrity  by  the  evidence  concerning  those  facts,  and 
of  these  impressions  the  most  important  part  is  produced  by 
the  language  and  demeanour  of  the  witnesses  and  by  the  cha- 
racteristics of  their  story,  not  as  it  is  read  on  paper  but  as  it  falls 
from  their  lips.  It  follows  that  a  Judge  of  moderate  abilities, 
who  is  actually  in  contact  with  the  witnesses,  has  a  far  better 
chance  of  arriving  at  truth  than  a  Judge  of  much  higher 
power  who  hears  the  evidence  at  second-hand,  even  when  that 
evidence  is  completely  taken  on  paper.  But  when,  as  is,  I 
fear,  too  often  the  case  in  India,  the  evidence,  so  far  from 
being  completely  reported,  is  taken  down  with  utter  careless- 
ness and  unintelligence,  not  only  is  the  Judge  of  Appeal  in 
no  better  position  for  ascertaining  truth  than  the  Judge  of 


SMALL  CAUSE   COURTS  315 

First  Instance,  but  his  chances  of  reaching  it  arc  far  worse. 
I  am  quite  well  aware  that  many  able  men  in  India  think 
that  ingenuity  and  subtlety  in  the  Judge  of  Appeal  will  enable 
him  to  draw  from  imperfectly-reported  evidence  conclusions 
sounder  than  the  rough  impressions  of  the  Native  Judge 
below.  I  do  not  question  the  sincerity  of  their  belief,  but  I 
consider  that  the  theory  arrived  at  under  such  circumstances 
concerning  the  facts  is  in  most  cases  a  mere  figment  of  the 
mind,  and  that  the  chances  of  error,  so  far  from  being  dimin- 
ished, are  increased  in  proportion  to  the  ingenuity  of  the 
Court  of  Appeal.  I  do  not  say  that  the  incompetent  Judge 
of  First  Instance  is  not  often  in  the  wrong  ;  but  I  say  that  we 
have  no  security  that  the  Judge  of  xAppeal  is  in  the  right. 
The  first  can  only  err  (if  we  put  bad  faith  aside)  from  making 
an  ignorant  or  careless  use  of  real  materials,  but  the  errors  of 
the  second  come  from  his  being  compelled  to  work  upon 
materials  which  are  only  imaginary. 

However  strange  or  novel  these  principles  may  appear  in 
India,  they  are  the  foundation  of  the  English  system  of  decid- 
ing questions  of  fact.  In  the  English  Courts  whose  business 
it  is  to  decide  such  questions,  there  is  no  such  thing  as  a  true 
appeal  from  the  decision  of  a  Judge  of  First  Instance  on  facts. 
The  finding  of  a  County  Court  Judge  on  facts  is  always  taken 
as  conclusive  even  when  the  soundness  of  his  decision  on  a 
point  of  law  is  in  question  ;  and,  though  the  verdict  of  a  jury 
may  sometimes  be  disturbed,  the  Court  of  Law  never  propounds 
its  own  view  of  the  facts,  but  refers  the  case  to  a  second  jury. 
Indeed,  it  is  only  once  among  a  thousand  cases  that  a  verdict 
is  set  aside  as  against  the  weight  of  evidence  ;  the  common 
cause  of  disturbing  verdicts  is  some  error  of  law  by  the  Judge 
who  directs  the  jury. 

The  doctrine  that  there  is  no  patent  machinery,  consist- 
ing of  rules  to  guide  the  mind,  by  which  truth  can  be  extracted 
from  paper  evidence  is  one  of  the  few  contributions  which 
scientific  jurisprudence  owes  to  English  lawyers.  Such  rules 
form  a  large  chapter  in  most  Continental  systems  of  law  ;  but 
the  English  Law  of  Evidence,  which  assumes  the  existence  of 
a  Judge  and  jury  sitting  together,  has  quite  a  different  charac- 
ter.    This  part  of  English  law  (the  Law  of  Evidence)  is  most 


3l6  MINUTES 

useful  to  a  Judge  of  P'irst  Instance  ;  but  it  has  no  application 
at  all,  or  only  the  very  smallest,  to  a  Court  of  Appeal.  I 
perceive,  with  regret,  that  many  Indian  Judges  of  xA.ppeal 
have  formed  a  wholly  erroneous  notion  of  the  functions  and 
limits  of  the  English  Law  of  Evidence.  The  results  of  their 
attempting  to  apply  it  in  aliend  materia  can  only  be  to  create 
confusion  worse  confounded. 

To  show  that  these  are  not  merely  speculative  theories 
I  will  take  the  liberty  of  stating  how  I  have  seen  them  tested. 
In  the  English  Court  of  Chancery,  partly  from  its  having  in- 
herited some  false  principles  from  Roman  law,  but  chiefly 
through  the  anxiety  of  the  court  to  save  the  suitors  from 
expense,  an  Equity  Judge,  instead  of  sending  a  complicated 
question  of  fact  to  a  Common  Law  Court  to  have  it  solved  by 
a  jury,  will  sometimes  undertake  to  decide  it  himself.  I  have 
rarely  known  a  Judge  to  make  the  attempt  without  express- 
ing distrust  of  his  own  judgment,  and  I  have  generally 
observed  that  the  amount  of  distrust  is  in  proportion  to  the 
ability  of  the  Judge.  But  it  has  once  or  twice  happened 
within  my  knowledge  that  a  Judge,  after  beginning  the 
attempt  and  stating  his  impression  of  the  facts,  has  finally 
abandoned  the  inquiry  in  despair  and  sent  the  case  to  a  jury. 
It  has  been  the  startling  difference  of  the  story  as  heard  from 
the  witnesses  from  the  same  story  as  told  on  paper,  and  the 
conviction  forced  upon  me  that  the  decision  of  the  jury  was 
right  and  the  impressions  of  the  Judge  wrong,  which  have  left 
me  without  the  slightest  doubt  of  the  soundness  of  the  prin- 
ciples set  forth  above. 

The  practical  conclusion  which  I  draw  from  these  prin- 
ciples is  that  all  efforts  at  Indian  law  reform  should  be  directed 
to  one  end — to  the  improvement  of  our  Judges  of  First 
Instance.  Their  character  and  capacity  ought  to  be  such 
that  their  judgments  on  questions  of  fact  maybe  taken  by  all 
courts  above  as  conclusive.  But  it  would  be  a  mistake  to 
suppose  that  I  point  at  a  very  high  standard.  Moderate 
ability  would  suffice,  so  far  as  Judges  of  First  Instance  are 
required  to  decide  on  questions  of  fact ;  but  good  sense,  good 
faith,  and  familiarity  with  the  usages  of  the  people  are  indis- 
pensable. 


SMALL   CAUSE   COURTS  317 

Such  a  course  of  law  reform  would  carry  with  it  the  rare 
combination  of  diminished  expenditure  with  closer  adjustment 
to  principle.  So  that  our  efforts  and  those  of  the  Local 
Councils  and  Governments  take  that  direction,  I  am  almost 
indifferent  as  to  the  specific  scheme  which  may  command 
favour.  But  I  think  I  am  bound  to  say  something  of  two 
proposals  which  resemble  one  another  in  raising  the  questions 
which  I  have  been  considering. 

One  is  the  proposal  referred  to  in  Mr.  Harington's  Note 
for  the  Constitution  of  Provincial  or  Divisional  Courts,  whose 
decisions,  though  subject  to  appeal  on  points  of  law,  should 
be  conclusive  on  questions  of  fact.  This  plan  has  the  autho- 
rity of  Sir  Barnes  Peacock  and  Mr.  Harington,  and  the 
mention  of  the  Chief  Justice's  name  gives  me  the  opportunity 
of  stating  that  Sir  Barnes  Peacock,  as  I  gather  from  conver- 
sations with  him,  entirely  concurs  with  me  on  the  question  of 
principle  just  discussed.  Nothing  can  be  sounder  than  the 
principles  on  which  the  scheme  of  Provincial  Courts  is  based, 
and  it  would  be  a  radical  remedy  for  the  evils  of  the  Indian 
judicial  system.  But  then  it  has  the  inconveniences  of  all 
radical  remedies.  It  would  revolutionise  all  existing  arrange- 
ments ;  it  would  disturb  all  existing  interests  ;  it  would  raise 
some  very  troublesome  questions  regarding  the  privileges  of 
the  Civil  Service  ;  and  at  first,  though  certainly  not  in  the 
long  run,  it  would  be  very  expensive. 

Further  than  this,  I  must  own  that  I  hesitate  to  express 
an  opinion  in  favour  of  any  comprehensive  scheme  of  Indian 
law  reform  so  long  as  the  petty  and  the  great  litigation  are 
disposed  of  by  the  same  machinery.  No  one  can  quite  say 
what  may  be  the  exact  consequence  of  attempting  to  mend 
an  engine  which  has  so  much  work  to  do.  It  is  well  known 
to  English  lawyers  that  law  reform  was  impracticable  at  home 
until  the  County  Courts  were  established  ;  but  as  soon  as  the 
courts  at  Westminster  were  lightened  of  the  burden  of  petty 
cases,  then  faults  of  constitution  and  procedure  became  visible 
and  the  results  of  altering  them  could  be  foreseen.  Then 
and  not  till  then,  the  Common  Law  Procedure  Acts  were 
passed.  India  is  now  in  the  condition  from  which  England 
has   been  delivered,  and  remains  the   sole   example   in    the 


3l8  MINUTES 

world  (so  far  as  my  knowledge  extends)  of  a  country  pretend- 
ing to  a  civilised  judicial  system  in  which  the  great  and  small 
litigation  are  dealt  with  by  the  same  judicial  machinery.  The 
only  apology  I  ever  heard  for  this  anomaly  consisted  in  the 
observation  that  the  poor  man's  cases  are  as  valuable  to  the 
poor  man  as  the  rich  man's  cases  to  the  rich  man,  and  that 
both  are  entitled  to  the  same  securities  for  justice.  I  trust  I 
may  be  pardoned  for  comparing  this  argument  to  the  ironical 
reasoning  of  the  English  Judge  who  defended  the  former 
English  system  of  divorce  by  Act  of  Parliament  on  the  plea 
that  the  law  of  England  knew  no  distinctions  between  rich 
and  poor.  The  truth  is,  that  the  faults  of  the  existing  Indian 
system  fall  with  infinitely  greater  weight  on  the  poor  man 
than  on  the  rich.  From  the  smallness  of  the  sums  which  he 
generally  has  at  stake  in  his  cases,  the  poor  man  is  restricted 
to  the  lowest  stages  of  the  judicial  hierarchy.  He  is  confined 
to  the  lowest  (and  therefore  the  most  incompetent)  Judge  of 
First  Instance,  and  to  the  lowest  (and  therefore  the  most  in- 
competent) Judge  of  Appeal.  He  is  only  brought  into  con- 
tact with  those  parts  of  our  judicial  system  of  which  it  is  too 
often  true  that  the  blind  sit  in  appeal  from  the  blind. 

These  remarks  bring  me  to  the  second  of  those  plans 
which,  in  my  eyes,  have  at  least  the  merit  of  being  adjusted 
to  true  principles — the  scheme  for  the  extension  of  small 
cause  courts.  I  do  not  in  the  least  wish  to  anticipate  a  dis- 
cussion which  may  be  more  usefully  taken  up  hereafter  and 
elsewhere  ;  but  such  grave  misapprehensions  are  abroad  that 
I  venture  to  point  out  very  briefly  the  bearing  of  the  argu- 
ments which  I  have  submitted  on  the  question  of  the  esta- 
blishment of  small  cause  courts. 

The  essentials  in  the  constitution  of  a  properly-organised 
small  cause  court  are  these— 

1st. — The  comparative  superiority  of  the  Judge. 

2nd. — The  limitation  of  the  jurisdiction  to  a  certain  class 
of  cases. 

^rd. — The  limitation  of  the  jurisdiction  to  cases  below  a 
certain  amount.  Of  these  three  ingredients  the  first  two  are 
incomparably  the  most  important.  The  effect  of  that  charac- 
teristic of  a  small  cause  court  which  I  have  placed  second  in 


SMALL   CAUSE   COURTS  319 

order — the  limitation  of  the  jurisdiction  to  cases  belonging  to 
certain  specified  classes — is  that  small  cause  courts  arc  pre- 
eminently courts  for  the  trial  of  facts.  I  refer  to  section  3  of 
Act  XLII.  of  i860  and  section  8  of  the  Bill  for  the  Improve- 
ment of  Civil  Justice  in  Suits  of  Small  Value,  and  beg  to 
observe  that  it  is  only  in  rare  instances  that  cases  belonging 
to  the  classes  there  indicated  involve  questions  of  law.  When 
they  do  involve  them,  the  questions  are  usually  of  the  simplest 
kind. 

When  it  is  once  seen  that  a  Small  Cause  court  is  mainly 
a  court  of  fact,  and  when  the  superiority  of  the  Judge,  the 
characteristic  which  I  have  placed  first,  is  taken  into  account, 
I  trust  it  is  immediately  perceived  that  the  reason  for  giving 
no  appeal  from  the  Judge  of  a  Small  Cause  court  is  not  the 
mere  wish  to  get  rid  of  the  appeal.  The  appeal  is  discarded 
because  it  is  not  wanted  ;  because  it  would  create  injustice 
and  not  justice  ;  because  it  would  do  harm  and  not  good. 

It  is  true — though  much  less  true  of  the  Mufassal  than  of 
England  and  the  presidency  towns — that  it  is  sometimes  not 
possible  perfectly  to  eliminate  law  from  fact.  The  cases  to 
which  the  jurisdiction  of  Small  Cause  courts  is  limited  may 
occasionally  invoke  questions  of  law,  and  hence  it  is  necessary 
that  a  Small  Cause  court  Judge  should  have  had  a  legal  train- 
ing. Otherwise,  any  man  of  good  sense,  good  faith,  and  fami- 
liarity with  the  usages  of  the  people  would  serve. 

The  element  of  a  Small  Cause  court  which  I  placed  last 
in  order — the  limitation  of  the  jurisdiction  to  suits  below  a 
certain  value — is  popularly  considered  the  most  important  of 
all.  It  is,  in  fact,  the  least  important.  It  is  supposed  to  be 
designed  for  the  sake  of  limiting  the  area  of  possible  injustice, 
Injustice  may  occasionally  be  done  by  Small  Cause  courts  as 
by  other  courts,  but  I  do  not  hesitate  to  say  that  the  limita- 
tion of  the  jurisdiction  to  a  small  amount  is  chiefly  a  conces- 
sion to  popular  distrust  of  a  new  system.  It  is  invariably 
found  that,  when  a  County  Court  or  Small  Cause  court  has 
been  organised  on  proper  principles  and  establi.shed  in  a  par- 
ticular locality,  a  feeling  grows  up  in  favour  of  increasing  the 
amount  of  its  jurisdiction. 

The  only  further  remark  I  have  to  offer  at  present  is  that, 


320  MINUTES 

although  I  hold  the  Indian  system  of  appeal  on  facts  to  be 
founded  mainly  on  a  delusion,  I  admit  it  to  be  important 
that  the  delusive  nature  of  the  system  is  not  recognised 
generally  in  India.  Though  it  may  not  be  possible  to  correct 
the  blunders  of  a  Munsif,  the  Munsif  himself  thinks  that 
it  is  possible  ;  and  thus  may,  to  some  extent,  be  less  open  to 
corruption  and  a  shade  more  careful  in  his  adjudication  and 
in  his  collection  of  the  evidence.  So  long  as  our  Judges  of 
First  Instance  are  what  they  are  at  present,  I  would  never 
relieve  their  decisions  on  facts  from  appeal  without  substitut- 
ing for  the  system  of  appeals  a  system  of  rigid  supervision 


THE   KATHIAWAR  STATES  AND   SOVEREIGNTY 

March  22,  1864. 

This  is  one  of  the  minutes  referred  to  (supra,  p.  36)  by  Sir  Henry 
Durand,  which  regulate  the  relations  of  the  Oovernment  of  India 
to  those  Native  chieftains  commonly  called  (in  the  language  of  the 
Middle  Ages)  'feudatories,'  but  more  accurately  and  intelligibly 
described  as  rulers  to  whom  a  small  portion  or  fragment  of  sove- 
reignty is  reserved,  sufficient  to  enable  them  to  exercise  some  of  the 
functions  of  Government. 

I  concur  in  the  expediency  of  the  arrangement  proposed 
by  the  Governor  General  for  the  affairs  of  Kathi'awar,  and  it 
is  possible  that,  if  the  legal  basis  on  which  His  Excellency 
places  his  proposals  were  properly  explained,  I  might  not 
dissent  from  it.  But  the  proposition  that  territory  which  is 
British  is  not  subject  to  British  law  does  not  appear  to  me  to 
be  tenable,  and  I  am  certainly  of  opinion  that  the  Governor 
General's  view  is  not  reconcilable  with  the  view  of  the 
Bombay  Government.  The  members  of  that  Government 
obviously  mean  to  contend  that  Kathi'awar  is  British  territory 
in  the  same  sense  in  which  the  Konkan  is,  and  if  so  I  think 
that  all  the  consequences  which  they  contemplate  would 
follow.  All  laws  and  regulations  which  were  of  general 
application,  and  were  passed  by  a  competent  legislature, 
would  extend  to  Kathi'awar,  and  a  very  difficult  and  complex 
enactment  would  be  required  to  place  the  country  under  a 
system  adapted  to  the  state  of  society  which  prevails  in  it. 


THE   KAthIawXR   states   AND    SOVEREIGNTY         32 1 

The  Foreign  Secretary  has,  it  is  true,  called  attention  to  a 
provision  of  the  Bombay  Regulations  which  attempts  to 
enact  that  no  territory  shall  be  made  subject  to  the  Regula- 
tions except  by  specific  Regulations.  I  do  not  doubt  that 
this  provision  was  intended  to  have  the  effect  attributed  to  it 
by  Colonel  Durand,  but  I  consider  that  it  was  beyond  the 
powers  of  the  enacting  authority.  No  Indian  legislature  as 
constituted  in  1827  could  shackle  the  action  of  the  same 
Indian  legislature  as  constituted  in  1828.  Impediments  to 
the  exercise  of  the  full  powers  of  legislation  at  any  given 
moment  can  only  be  created  by  some  superior  legislature. 

I  am  quite  conscious  of  the  difficulty  of  applying  inter- 
national rules  and  international  conceptions  in  India,  but  if 
that  difficulty  must  be  faced,  my  opinion  is  that  the  Kathi'a- 
war  States  are  in  the  enjoyment  of  some  measure  (although 
a  very  limited  measure)  of  sovereignty,  and  that  therefore  the 
territory  which  they  include  is  properly  styled  foreign  territory. 
The  arguments  of  the  Bombay  Government — and,  if  I  may 
venture  to  say  so,  of  Mr.  Ritchie— seem  to  me  to  be  vitiated 
by  an  imperfect  appreciation  of  the  rule  laid  down  by  the 
publicists  that  the  question  of  sovereignty  is,  for  purposes  of 
international  law,  pre-eminently  a  question  of  fact.  It  is  not 
enough  that  a  claim  to  political  supremacy  might  have  been 
asserted  ;  in  order  that  the  law  of  nations  may  apply,  it  is 
necessary  that  the  claim  should  have  been  in  fact  asserted. 
If  this  were  not  so,  international  law  would  have  to  take 
notice  of  such  pretensions  as  that  of  former  kings  of  England 
to  be  kings  of  France,  or  of  the  former  kings  of  the  two 
Sicilies  to  be  kings  of  Cyprus  and  Jerusalem.  Whether  the 
Peishwa  or  the  Gaikwar  had  really  any  authority  over  Kath- 
I'awar  of  such  a  sort  that  it  was  capable  of  descending  to  any 
other  Power  is  a  point  on  which  I  do  not  think  it  necessary 
to  enter,  because,  whatever  were  the  rights  which  were  in- 
herited by  the  British  Government,  those  rights  have  never 
been  actively  asserted.  On  the  contrary,  it  appears  to  me 
that  they  have  been  distinctly  disclaimed.  Not  only  has  our 
whole  course  of  action  in  Kathiawar  been  inconsistent  with 
a  claim  to  absolute  sovereignty,  but  the  Court  of  Directors 
made  a  declaration  in  1830  which  appears  to  me  to  have  con- 

Y 


322  MINUTES 

clusively  disposed  of  any  such  claim.  The  Court  of  Directors 
was  perfectly  competent  to  disclaim  sovereignty  over  Kathi'a- 
war,  and  it  did  disclaim  it.  Sovereignty  being  a  question  of 
fact,  this  declaration,  being  an  admission  against  the  interest 
of  the  declaring  party,  is  evidence  virtually  irresistible.  Nor 
do  I  think  that  this  declaration  can  be  recalled  by  any  exist- 
ing authority,  whether  it  be  the  Government  of  India  or  the 
Secretary  of  State  in  Council.  On  the  assumption  that  inter- 
national rules  in  some  sense  or  other  apply  to  the  case,  it  is 
not  competent  to  a  State,  after  admitting  by  an  organ  capable 
of  representing  it  that  a  neighbour  is  sovereign,  to  turn  round 
suddenly  and  allege  that  the  admission  was  all  a  mistake. 
It  is  conclusively  bound  by  its  declaration  until  a  new  state 
of  things  arises  through  war  or  treaty. 

But,  although  these  seem  to  me  to  be  the  principles  which 
apply  to  the  relations  between  Kathi'awar  and  the  British 
Government,  it  does  not  at  all  follow  that  the  Government  of 
India  is  precluded  from  carrying  out  in  Kathi'awar  the  arrange- 
ments suggested  by  the  Governor  General.  I  quite  agree 
with  Pvlr.  Harington  that  the  analogy  which  governs  the 
case  is  that  of  the  old  demi-sovereign  States  in  Europe,  and 
I  think  that  a  portion  of  sovereignty  over  Kathi'awar,  sufficient 
to  warrant  us  in  interfering  for  the  good  order  of  society 
and  the  well-being  of  the  people,  is  lodged  with  the  British 
Government. 

Sovereignty  is  a  term  which,  in  international  law,  indicates 
a  well-ascertained  assemblage  of  separate  powers  or  privileges. 
The  rights  which  form  part  of  the  aggregate  are  specifically 
named  by  the  publicists,  who  distinguish  them  as  the  right  to 
make  war  and  peace,  the  right  to  administer  civil  and  criminal 
justice,  the  right  to  legislate,  and  so  forth.  A  sovereign  who- 
possesses  the  whole  of  this  aggregate  of  rights  is  called  an 
independent  sovereign,  but  there  is  not,  nor  has  there  ever 
been,  anything  in  international  law  to  prevent  some  of  those 
rights  being  lodged  with  one  possessor  and  some  with  another. 
Sovereignty  has  always  been  regarded  as  divisible.  Part  of 
the  sovereignty  over  those  demi-sovereign  States  in  Germany 
which  were  put  an  end  to  by  the  Confederation  of  the  Rhine 
resided  with  the  Emperor  of  Germany  ;  part  belonged  to  the 


THE   KATHIAWAR   STATES   AND   SOVEREIGNTY  323 

States  themselves.  So  also  a  portion  of  the  sovereignty  over 
the  States  which  make  up  the  present  German  Confederation 
belongs  to  that  Confederation.  Again,  the  relation  of  the 
Swiss  Cantons  to  the  Federal  Power  was,  until  the  events  of 
1847  and  1848,  a  relation  of  imperfect  sovereignty;  and 
though  at  this  moment  it  is  dangerous  to  speak  of  the  North 
American  States,  the  relation  of  the  several  members  of  the 
Union  to  the  Federal  authority  was,  until  recently,  supposed 
to  be  of  the  same  nature.  In  point  of  fact,  Europe  was  at 
one  time  full  of  imperfectly-sovereign  States,  although  the 
current  of  events  has  for  centuries  set  towards  their  aggrega- 
tion into  large  independent  monarchies.  It  may  be  further 
mentioned  that,  down  to  the  dissolution  of  the  German 
Empire,  the  Emperor  of  Germany  claimed  theoretically  to 
be  sole,  absolute,  or  (as  it  would  now  be  called)  independent 
sovereign  in  Europe. 

It  may  perhaps  be  worth  observing  that,  according  to  the 
more  precise  language  of  modern  publicists,  '  sovereignty  '  is 
divisible  but  '  independence '  is  not.  Although  the  expres- 
sion '  partial  independence '  may  be  popularly  used,  it  is 
technically  incorrect.  Accordingly,  there  may  be  found  in 
India  every  shade  and  variety  of  sovereignty,  but  there  is  only 
one  independent  sovereign,  the  British  Government.  My 
reason  for  offering  a  remark  which  may  perhaps  appear 
pedantic  is  that  the  Indian  Government  seems  to  me  to  have 
occasionally  exposed  itself  to  misconstruction  by  admitting 
or  denying  the  independence  of  particular  States,  when  in 
fact  it  meant  to  speak  of  their  sovereignty. 

The  mode  or  degree  in  which  sovereignty  is  distributed 
between  the  British  Government  and  any  given  Native  State 
is  always  a  question  of  fact,  which  has  to  be  separately 
decided  in  each  case,  and  to  which  no  general  rules  apply. 
In  the  more  considerable  instances,  there  is  always  some 
treaty,  engagement  or  sunnud,  to  guide  us  to  a  conclusion, 
and  then  the  only  question  which  remains  is,  what  has  become 
of  the  sovereign  rights  which  are  not  mentioned  in  the  con- 
vention ?  Did  the  British  Government  reserve  them  to  itself, 
or  did  it  intend  to  leave  the  native  power  in  the  enjoyment 
of  them  ?     In  the  case   of  Kathi'awar   the    few    ambiguous 


324  MINUTES 

documents  which  bear  on  the  matter  seem  to  me  to  point  to 
no  certain  result,  and  I  consider  that  the  distribution  of  the 
sovereignty  can  only  be  collected  from  the  de  facto  relations 
of  these  States  with  the  British  Government — from  the  course 
of  action  which  has  been  followed  by  this  Government  towards 
them.  Though  we  have  to  interpret  this  evidence  ourselves, 
it  is  in  itself  perfectly  legitimate. 

It  appears  to  me,  therefore,  that  the  Kathi'awir  States 
have  been  permitted  to  enjoy  several  sovereign  rights,  of 
which  the  principal — and  it  is  a  well-known  right  of  sove- 
reignty— is  immunity  from  foreign  laws.  Their  chiefs  have 
also  been  allowed  to  exercise  (within  limits)  civil  and  criminal 
jurisdiction,  and  several  of  them  have  been  in  the  exercise  of 
a  very  marked  (though  minor)  sovereign  right — the  right  to 
coin  money.  But  far  the  largest  part  of  the  sovereignty  has 
obviously  resided  in  practice  with  the  British  Government, 
and  among  the  rights  which  it  has  exercised  appears  to  me 
to  be  an  almost  unlimited  right  of  interference  for  the  better 
order  of  the  States.  I  mean  that,  if  the  interferences  which 
have  already  taken  place  be  referred  to  principles,  those  prin- 
ciples would  justify  any  amount  of  interposition,  so  long  as 
we  interpose  in  good  faith  for  the  advantage  of  the  chiefs  and 
people  of  Kathi'awar,  and  so  long  as  we  do  not  disturb  the 
only  unqualified  sovereign  right  which  these  States  appear  to 
possess — the  right  to  immunity  from  foreign  laws. 

I  think,  therefore,  that  the  actual  state  of  the  sovereignty 
over  Kathi'awar  affords  a  legal  basis  for  the  Governor 
General's  plan.  But  even  if  I  were  compelled  to  admit  that 
the  Kdthiawar  States  are  entitled  to  a  larger  measure  of 
sovereignty,  I  should  still  be  prepared  to  maintain  that  the 
Government  of  India  would  be  justified  in  interfering  to  the 
extent  contemplated  by  the  Governor  General.  There  does  not 
seem  to  me  to  be  the  smallest  doubt  that,  if  a  group  of  little 
independent  States  in  the  middle  of  Europe  were  hastening 
to  utter  anarchy,  as  these  Kathi'awar  States  are  hastening,  the 
greater  Powers  would  never  hesitate  to  interfere  for  their 
settlement  and  pacification  in  spite  of  their  theoretical  inde- 
pendence. If  anybody  objected  to  the  proceeding,  it  would 
be   because    some    motive   of  self-aggrandisement  was  sus- 


THE    EDUCATIONAL   SERVICE  325 

pected.  But  the  motives  of  the  Government  of  India  in 
effecting  an  arrangement  of  the  affairs  of  Kathi'awar  are  above 
suspicion,  and  the  course  which  it  is  proposed  that  we  should 
take  has  its  justification,  not  only  in  the  indefinite  obligations 
contracted  by  us  in  the  capacity  of  Paramount  Power,  but  in 
the  fact,  adverted  to  by  Colonel  Durand,  that  our  government 
of  India  has,  in  a  sense,  been  the  cause  of  this  anarchy  in  Kath- 
i'awar. One  of  the  many  difficulties  attending  the  application 
of  international  law  in  India  arises  from  the  circumstance 
that  the  whole  system  of  the  law  of  nations  was  framed  by  its 
authors  subject  to  the  contingency  of  occasional  war.  The 
British  Government  has  prevented  the  Kathi'awar  States  from 
going  to  war  among  themselves,  and  hence  has  arrested  the 
operation  of  a  natural  process  by  which  the  endless  sub-division 
of  the  chiefships  occasioned  by  the  law  of  succession  would 
have  been  corrected  or  counteracted. 

It  is  conceded  on  all  hands  that  Bhaunagar  is  British 
territory.  Legislation  will  therefore  be  needed  in  all  proba- 
bility to  bring  it  under  a  system  in  any  degree  resembling 
that  adopted  for  the  foreign  States  in  Kathi'awar. 


THE  EDUCATIONAL   SERVICE 
May  12,  1864. 

If  the  Secretary  of  State  recognises  the  expediency  of 
removing  or  mitigating  the  many  disadvantages  under  which 
the  Educational  Service  is  placed,  but  at  the  same  time 
prefers  one  general  scheme  for  all  India  to  a  number  of  local 
schemes,  I  think  he  is  in  a  much  better  position  for  forming 
such  a  plan  than  we  are.  Most  of  the  materials  for  a  conclu- 
sion are  in  England,  not  in  India,  for  the  point  to  be  ascertained 
is  what  amount  of  encouragement  is  necessary  to  induce  a 
certain  class  of  young  men  in  England  to  make  the  experi- 
ment of  entering  this  service.  The  Secretary  of  State,  it  will 
be  remembered,  has  just  informed  us  that  the  selection  of 
Educational  Officers  for  India  must  be  left  entirely  in  his 
hands. 

I  hesitate  to  decide  between  Mr.  Howard's  plan  and  Mr. 


326  MINUTES 

Atkinson's.^  The  former,  no  doubt,  adds  certainty  to  other 
inducements  as  a  reason  for  enlisting  in  the  service,  but  we 
must  not  leave  out  of  consideration  Mr.  Atkinson's  statement 
that  men  occasionally  come  out  whom  it  is  worth  paying  to 
go  home  again.  Certainty  can  be  no  advantage  here  if  it 
tends  to  keep  such  men  in  the  country. 

For  my  part,  I  see  no  objection  to  having  two  or  three 
local  systems  in  operation  at  once.  The  class  interested  is, 
after  all,  but  small,  and  we  know  too  little  of  the  motives 
which  induce  its  members  to  come  here  or  stay  here  for  us 
to  be  able  to  pronounce  confidently  whether  this  or  that  mode 
of  dealing  with  it  is  the  best.  If  one  plan  proves  in  practice 
more  effectual  than  another,  we  can  then  generalise  it. 

I  would,  therefore,  recommend  Mr.  Atkinson's  scheme  to 
the  Secretary  of  State,  without  prejudice  to  Mr.  Howard's. 

I  am  strongly  impressed  with  the  necessity  of  our  im- 
proving both  the  pecuniary  and  the  social  position  of  the 
Educational  Service.  In  their  present  condition  of  unmiti- 
gated discontent,  they  are  becoming  almost  a  dangerous 
class.  An  order  of  Government  servants  at  once  underpaid 
and  malcontent,  and  highly  educated  and  cultivated,  seems 
to  me  an  element  not  to  be  lightly  introduced  into  Indian 
society.  It  is  abundantly  evident  that  the  whole  journalistic 
opposition  to  the  Government  in  some  parts  of  India  has 
fallen  into  the  hands  of  educational  officers,  and  a  most 
effective  opposition  it  is. 

That  the  members  of  the  Educational  Service  are 
humiliated  by  their  relative  inferiority  in  rank  to  the  Civil 
Service  I  know  to  be  a  fact,  nor  do  I  think  that  Mr.  Bayley's 
remark  as  to  the  two  classes  being  distinguished  by  the  dif- 
ferent motives  which  bring  them  to  India  is  well  founded. 
Judging  from  my  own  experience,  I  should  say  that  whether 
a  young  man  at  the  Universities  competes  for  the  Civil 
Service  or  enters  the  Educational  Service  is  more  a  matter  of 
accident  than  anything  else.  The  great  cause  which  deters 
University  men  from  the  competition  for  the  Civil  Service  is 
that    they    are    practically    obliged    to    choose    between    the 

'  Mr.  E.  J.   Howard  was  then  Di-       held    the   corresponding   post    in    the 
rector   of    Public    Instruction    in    the       Lower  Provinces  of  Bengal. 
Bombay  Presidency.       Mr.     Atkinson 


CIVIL   LIABILITY   OF    MILITARY   OFFICERS  327 

competition  and  an  University  degree.  The  majority  prefer 
the  latter,  and  afterwards,  either  from  finding  the  difficulties 
of  getting  on  in  life  greater  than  they  expected,  or  from 
a  wish  to  marry,  a  certain  number  of  this  majority  turn  their 
attention  again  to  an  Indian  career,  which  is  now  only  open 
through  the  Educational,  or,  perhaps,  the  Financial  Depart- 
ment. So  far  as  the  Universities  are  concerned,  it  cannot  by 
any  means  be  said  that  the  men  who  join  the  Educational 
Department  are  in  any  way  inferior  in  intellect  or  energy  to 
those  who  enter  the  Civil  Service.  I  would  certainly  move 
the  Secretary  of  State  to  revise  the  relative  rank  of  the  two 
services. 

That  University  men — or,  at  all  events,  highly-educated 
men — are  to  be  preferred  to  all  others  for  the  Educational 
Department  I  have  no  sort  of  doubt,  at  least  as  regards 
Bengal.  The  only  alternative  to  them  is  the  certificated 
schoolmaster  class,  which  has  universally  proved,  I  believe, 
a  failure.  Whatever  be  their  defects,  the  Bengalis  have  just 
that  sort  of  intellect  which  rapidly  finds  out  a  man  who  has 
been  taught  to  teach  by  rule  in  a  Normal  school,  and  indeed 
their  whole  intellectual  cast  is  such  that  a  highly-cultivated 
mind  is  necessary  to  deal  with  them  and  to  win  their  respect. 

CIVIL  LIABILITY  OF  MILITAR  Y  OFFICERS  » 
October  19,  1866. 

My  own  personal  belief  is,  that  the  three  suits  recently  insti- 
tuted by  Captain  Jervis  against  his  Excellency  Sir  William 
Mansfield  ^  for  money  due  on  a  building  account,  for  a  general 
balance  of  account,  and  for  defamation,  were  wholly  frivolous 
and  vexatious,  and  that  they  were  intended  partly  to  prevent 
an  exercise  of  military  authority  (which  indeed  was  the 
reason  assigned  for  their  withdrawal)  and  partly  to  give  colour 
to  certain  allegations  made  by  the  plaintiff  in  his  defence 
before  the  court-martial  which  has  just  closed  its  sittings.  I 
know  as  a  fact  that  the  documents  filed  in  those  suits  con- 
tained many  statements  falling  under  the  grossest  forms  of 

'  See  now  the  Army  Act,  1881,  sec.  170. 
^  Afterwards  Lord  Sandhurst. 


328  MINUTES 

what  is  technically  known  to  English  lawyers  as  '  scandal 
and  impertinence.'  Further,  I  feel  very  strongly  the  force  of 
some  of  his  Excellency's  general  remarks  on  the  injury 
which  may  result  to  military  discipline  from  abuse  of  the 
machinery  of  the  civil  courts.  The  risk  of  such  abuse  appears 
to  me  to  be  growing  in  India,  and  I  admit  it  to  be  a  risk  with 
which  commanding  officers  are  little  able  to  cope,  and  against 
which  they  ought  not  to  be  called  upon  to  struggle. 

It  is  therefore  with  some  regret  that  I  feel  myself  com- 
pelled to  say  that  the  plan  submitted  to  us  by  his  Excellency 
is,  in  my  judgment,  impracticable. 

His  Excellency  suggests  that  '  the  Commander-in-Chief 
of  the  several  presidencies  and  commanding  officers  generally 
shall  not  be  liable  to  be  sued  by  officers  on  the  full  pay  of 
Her  Majesty's  service  serving  in  India,  or  by  officers  on  half- 
pay  employed  on  the  staff,  or  by  warrant  officers.  Native 
officers,  non-commissioned  officers,  and  soldiers,  British  and 
Native,  and  subordinates  attached  to  the  staff  or  regiments 
who  may  not  be  enlisted  under  the  command  of  the  said 
Commander-in-Chief  or  commanding  officer.'  I  imagine  that^ 
though  his  Excellency  does  not  distinctly  suggest  this,  he 
would  consider  that  a  necessary  supplement  to  his  scheme 
would  be  some  formally  organised  body,  a  Court  of  Honour 
or  Equity,  to  which  the  disputes  which  the  civil  courts 
would  be  prohibited  from  entertaining  might  be  referred. 

This  proposal  falls  in  with  what  is  no  doubt  the  popular 
idea  of  litigation  ;  that  it  involves  a  plaintiff  and  defendant 
distinctly  opposed  to  one  another,  and  also  that  it  involves  a 
contest  in  which  there  is  some  clear  moral  right  on  one  side 
or  the  other.  But  it  may  safely  be  asserted  that  probably 
the  largest,  and  certainly  the  most  important,  kinds  of  litiga- 
tion do  not  present  these  characteristics.  In  the  great 
majority  of  the  cases  tried  by  civil  courts  on  their  Equity 
side,  and  in  the  exercise  of  the  extraordinary  jurisdictions 
conferred  on  them  by  statute,  there  are  either  no  plaintiffs 
and  no  defendants,  or  the  parties  are  arranged  as  plaintiffs 
and  defendants  according  to  technical  rules  which  do  not 
always  or  generally  represent  their  real  antagonism.  Now, 
it  is  indisputable  that  every  contentious  proceeding  may  be 


CIVIL    LIABILITY   OF   MILITARY   OFFICERS  329 

incidentally  and  occasionally  employed  by  an  unscrupulous 
opponent  to  prevent  an  exercise  of  military  authority,  just  as 
two  of  the  suits  in  which  Sir  W.  Mansfield  was  made  defen- 
dant had  not  apparently  upon  the  face  of  them  any  connec- 
tion with  his  position  as  head  of  the  army  in  India.  Hence, 
in  order  fully  to  carry  out  his  Excellency's  proposal,  it  would 
be  necessary  to  prohibit  by  very  sweeping  provisions  all 
litigious  disputes  between  commanding  officers  and  their 
subordinates.  Very  great  and  very  far-reaching  injustice 
would,  however,  be  the  probable  result.  If  a  colonel  and  a 
lieutenant  have  the  misfortune  to  be  shareholders  in  an  insol- 
vent joint-stock  company,  it  would  seem  highly  unreasonable 
to  prevent  the  subaltern  from  seeking  to  bring  his  command- 
ing officer  on  the  list  of  contributors.  Again,  in  the  class  of 
cases  which  occupy  most  of  the  time  of  Equity  courts — 
disputes  on  doubtful  wills — a  subordinate  who  happened  to 
be  residuary  legatee  could  not  justly  be  precluded  from  trying 
to  avoid  an  ambiguous  specific  bequest  to  his  commanding 
officer.  Yet  it  would  be  hardly  possible  to  use  legislative 
language  at  once  sufficiently  general,  and  yet  not  pregnant 
with  these  consequences.  Nor  would  the  injustice  probably 
be  confined  to  the  officers  or  others  to  whom  litigation  was 
expressly  forbidden.  A  sweeping  statutory  prohibition  of 
litigation  between  persons  belonging  to  a  particular  class 
would  have  extensive  effect  in  vitiating  judicial  proceedings, 
and  might  compromise  the  interests  of  many  who  are  wholly 
beyond  the  sphere  of  military  discipline. 

I  feel  sure,  moreover,  that  his  Excellency's  proposal 
v/ould  work  considerable  and  very  unnecessary  injustice,  even 
were  it  confined  to  that  class  of  cases  in  which  there  is  a 
distinct  issue  between  plaintiff  and  defendant.  A  very  simple 
example  is  that  of  a  dispute  respecting  the  purchase  or  joint 
occupation  of  a  house. 

I  know  no  more  difficult  questions  of  land  law  than  those 
which,  in  the  absence  of  a  civil  code,  are  likely  to  arise  con- 
cerning immovable  property  in  the  Indian  Mufassal,  and  it 
would  be  very  unfair  to  compel  military  men  to  submit  such 
questions,  which  constantly  involve  neither  moral  right  nor 
moral  wrong,  to  a  court  whose  decision  would  be  a  business 


330  MINUTES 

of  guess-work.  The  risk  of  injustice  would  hardly  be  less  in 
the  application  of  his  Excellency's  scheme  to  the  class  of 
disputes  which  are  probably  more  immediately  in  his  mind — 
disputes  on  contracts.  One  of  the  suits  recently  brought 
against  his  Excellency  hinged  upon  a  building  contract ;  and 
it  happened  that  the  contract  was  one  which  should  have  put 
the  plaintiff  out  of  court  at  once.  But  building  contracts  as 
a  class  are  notoriously  difficult  to  construe,  and  so  are  most 
contracts  which  are  not  framed  by  experts,  but  drawn  up  by 
the  agreeing  parties  themselves ;  and  this,  I  presume,  is  the 
usual  practice  in  India. 

If  I  am  right  in  supposing  that  a  necessary  part  of  His 
Excellency's  plan  would  be  a  Court  of  Honour,  with  some 
sort  of  formal  organisation,  I  am  convinced  its  working  would 
be  unsatisfactory.  My  experience  of  unlearned  tribunals  is, 
that  they  either  decide  at  haphazard  or  are  ultra-technical. 
If  it  should  be  sought  to  neutralise  these  defects  by  allowing 
advocates  to  be  heard  by  the  court  (and  I  really  do  not  see 
how  they  could  be  kept  out),  it  seems  to  me  that  the  very 
liability  of  commanding  officers  to  annoyance  of  which  his 
Excellency  complains,  and  which  I  concur  with  him  in  think- 
ing a  great  evil,  would  be  very  likely  to  be  reproduced,  and 
in  a  far  more  embarrassing  form. 

Since,  however,  I  have  admitted  the  evil  to  which  his 
Excellency's  Minute  calls  attention  to  be  both  serious  and 
increasing,  it  would  be  very  improper  in  me  if  I  did  not 
endeavour  to  discover  and  point  out  some  expedient  by 
which  it  may  be  mitigated,  if  not  removed.  And  here  it  is 
important  to  inquire  what  the  actual  state  of  the  law  is  as  to 
the  civil  liability  of  commanding  officers. 

The  law  of  England,  which  the  Indian  courts  would 
(until  a  Civil  Code  provides  otherwise)  certainly  apply  to  such 
cases,  has  long  been  that  an  officer  is  not  civilly  liable  for 
acts  done  in  the  exercise  of  military  authority.  But  the  rule 
was  until  lately  supposed  to  be  subject  to  the  qualification 
that  the  acts  must  not  have  been  done  maliciously :  and  so  it 
was  laid  down  in  an  opinion  recently  received  from  the  Advo- 
cate General.  The  loophole  was  dangerous,  as  letting  in  an 
inquiry  as  to    motives.     But    Mr.  Cowie  had    probably   not 


CIVIL   LIABILITY   OF    MILITARY   OFFICERS  33 1 

observed  that  within  the  last  few  months  the  supposed  quaU- 
fication  had  been  removed  by  a  dictum  of  a  learned  Judge. 
Mr.  Justice  Willcs,  one  of  the  ablest  and  most  authoritative 
lawyers  on  the  English  Bench,  has  publicly  laid  down  that  if, 
in  an  action  before  him  against  an  officer  for  alleged  improper 
exercise  of  military  authority,  there  should  be  evidence  of 
malicious  intent,  he  should  still,  if  the  act  were  shown  to  be 
military,  direct  the  jury  to  find  a  verdict  for  the  defendant.' 
I  cannot  doubt  that  the  strong  and  pointed  language  in  which 
this  dictum  was  clothed  was  expressly  intended  to  reassure 
military  officers  in  England  who  have  recently  been  much 
harassed  by  litigation  such  as  that  of  which  his  Excellency 
complains.  The  law  has  therefore  now  for  its  basis  the 
doctrine  that  every  military  man  has  bound  himself  by  a 
'  peculiar  contract,'  to  use  Mr.  Justice  Willes's  expression, 
which  absolutely  confines  him  to  military  remedies  for  the 
redress  of  military  wrongs. 

Such  is  the  law.  Recourse  to  the  courts  is  not  abso- 
lutely barred,  for  there  may  still  be  an  inquiry  whether  the 
act  complained  of  was  really  done  in  the  exercise  of  military 
authority,  but  if  the  act  is  shown  to  have  been,  or  to  have 
purported  to  be,  military,  the  principle  of  decision  is  now  clear. 
It  may,  however,  be  said  that  the  very  power  of  suing  may  be 
used  as  an  engine  of  annoyance,  since  the  real  object  of  the 
suit  may  be  disguised  until  the  judicial  inquiry  above  men- 
tioned has  revealed  its  true  character,  and  since  scandalous 
and  defamatory  matter  may  be  introduced  into  the  pleadings, 
I  allow  that  officers  may  be  temporarily  harassed  by  the  first 
expedient,  though  it  is  one  of  which  the  consequences  must 
always  be  ultimately  serious  to  the  plaintiff;  but  the  second 
is  one  little  to  be  feared  under  a  well-arranged  system  of 
administering  civil  justice. 

There  is  no  offence  against  itself  which  a  court,  sensible 
of  its  duty  and  dignity,  so  deeply  resents,  and  none  which  so 
prepossesses  it  against  a  plaintiff,  as  the  attempt  to  employ  its 
procedure  to  inflict  collateral  injury  on  a  defendant.  It  does 
not   appear  to  me  that  the  rules  of  procedure  observed  by 

'  See  now  Dawkins  v.  Lord  Rokcby,  4  F.  &  F.  806,  832,  833,  and  Pollock's 
Law  of  Torts,  2nd  ed.  p.  237. 


332  MINUTES 

Indian  courts,  if  such  rules  be  considered  by  themselves,  give 
defendants  less  protection  against  such  injury  than  do  the 
analogous  rules  followed  in  England.  Section  124  of  the 
Code  of  Civil  Procedure  ^  gives  the  court  a  very  large  power 
of  rejecting  any  '  written  statement '  (which  is  the  part  of  the 
pleadings  into  which  scandalous  allegations  would  be  foisted) 
if  it  shall  be  of  opinion  that  the  statement  contains  *  matter 
irrelevant  to  the  suit,'  and  when  such  rejection  has  taken 
place,  the  party  cannot  present  a  fresh  written  statement 
without  the  express  permission  of  the  Judge.  No  doubt,  the 
Judge  would  allow  any  allegation,  even  \{ prima  facie  scanda- 
lous, to  be  retained  which  the  plaintiff  affirmed  to  be  true 
and  essential  to  the  merits  of  his  case.  But  in  so  affirming 
the  plaintiff  would  bring  himself  under  the  provisions  of 
section  24,  which  imposes  the  penalties  of  fabricating  false 
evidence  on  everybody  who  includes  in  a  written  statement 
averments  '  which  he  knows  or  believes  to  be  false,  or  which 
he  does  not  know  or  believe  to  be  true.' 

Let  us  suppose  the  three  suits  instituted  against  Sir 
William  Mansfield  to  have  been  brought  before  a  court  fully 
conscious  of  its  own  responsibilities.  The  suit  for  defamation 
of  character  was  one  of  which,  as  the  Advocate  General  has 
remarked,  very  short  work  would  have  been  made.  It 
amounted  in  a  lawyer's  eyes  to  the  legal  monstrosity  of  a 
suit  for  alleged  defamation  in  which  the  plaintiff,  while  he 
distinctly  defamed  the  defendant,  omitted  to  set  forth  the 
defamatory  matter  of  which  he  himself  complained.  Whether 
such  a  suit  ought  to  have  been  received  at  all  I  am  unable  to 
say,  since  I  am  unfamiliar  with  the  procedure  which  obtained 
in  the  Panjab  before  the  introduction  of  the  Code  a  few  weeks 
ago.  But  I  cannot  imagine  that  Mr.  Cowie  was.  wrong  in  sup- 
posing that  it  would  have  been  the  duty  of  any  court  to  take  it 
off  the  file  on  the  motion  of  the  defendant,  and  thus  the  plaintiff 
would,  at  the  very  least,  have  been  under  the  necessity  of 
paying  twice  over  his  very  heavy  stamps  and  talabana.^  As 
to  the  other  two  suits,  there  was  nothing  in  their  ostensible 
object  to  prevent  their  being  tried  in   regular  course,  but  a 

'  Act  VIII.  of  1859.     So  now  the  -  Fees   to   subordinate   officers   for 

Civil    Procedure   Code  of    1S82,    sec.       serving  processes  or  issuing  summonses 
116.  or  writs. 


CIVIL   LIABILITY   OF   MILITARY   OFFICERS  333 

competent  court  would  have  caused  any  scandalous  matter 
to  be  removed,  and  the  very  attempt  to  introduce  such  matter 
would  inevitably  have  led  it  to  view  the  whole  litigation  with 
suspicion,  to  watch  it  carefully,  and  to  sanction  all  reasonable 
steps  for  bringing  it  promptly  to  a  close. 

Whence,  then,  arises  the  peculiar  risk  of  annoyance  to 
which  I  admit  that  military  officers  in  India  are  exposed  ?  I 
think  it  arises  from  the  weakness  of  the  inferior  civil  courts 
in  the  Mufassal.  I  hope  I  am  not  using  language  of  unneces- 
sary disparagement.  I  am  not  speaking  of  want  of  ability  in 
the  officers  presiding  over  those  courts,  or  even  of  want  of 
judicial  ability.  I  refer  to  a  certain  lack  of  moral  firmness 
which  I  hear  of  in  all  quarters.  The  source  of  the  defect, 
which  perhaps  may  one  day  disappear,  is  not  far  to  seek. 
There  has  of  late  been  a  great  spread  of  advocacy  over  India, 
and  the  lower  courts  have  not  yet  fully  learned  (though  some 
have  learned  more  than  others)  to  curb  the  excesses  into 
which  it  is  sure  to  fall  unless  controlled  either  by  the  firm 
hand  of  a  Judge,  or  by  the  stern  rules  which  govern  the 
practice  of  the  English  Bar.  It  is  hardly  wonderful  that  an 
Indian  Mufassal  advocate  should  not  only  permit  himself  in 
court  a  licence  with  which  even  the  vulgarest  notions  of  an 
English  barrister's  liberty  have  no  sort  of  correspondence, 
but  should  occasionally  not  hesitate  to  defend  his  own  case 
and  attack  that  of  his  opponent  in  the  newspapers,  when  one 
considers  that  he  is  guided  by  no  definite  code  of  practice, 
and  that  he  has  almost  invariably  a  pecuniary  interest  in  the 
result  of  his  case.  At  all  events,  a  great  amount  of  concurrent 
testimony  has  for  some  time  past  been  reaching  me  that 
Indian  civil  courts  (apart  from  the  High  and  Chief  Courts) 
are  to  a  pitiable  degree  at  the  mercy  of  sophistry  and  effron- 
tery, and  are  most  unduly  sensitive  to  the  public  opinion 
brought  to  bear  on  them  from  outside.  Such  defects  must 
obviously,  and  very  seriously,  diminish  those  safeguards 
against  the  abuse  of  Civil  Procedure  which  I  have  described 
above,  while  they  add  opportunities  of  annoyance  which  would 
never  be  found  in  proceedings  before  a  strong  and  firm  Judge. 
And  then,  beyond  all  this,  there  is  that  vast  machinery  of 
appeal  which  presses  on  the  litigant  throughout   India,  but 


334  MINUTES 

nowhere  so  heavily  as  in  the  Panjab,  and  which,  essential  as 
it  may  be  to  the  dispensation  of  justice  in  the  ordinary  run  of 
cases,  would  almost  seem  carefully  framed  to  arm  a  deliber- 
ately vexatious  litigant  with  a  hundred-fold  power  of  vexation. 

The  liability  of  military  men  to  this  special  danger  has 
obviously  attracted  the  attention  of  the  framers  of  the  Mutiny 
Act,  since  it  can  hardly  be  doubted  that  section  88  (of  the 
Act  of  1865)  is  directed  against  it  ;  and  I  think  that  it  is 
only  through  an  accident  that  the  provision  has  failed  of 
effect  The  section  in  its  last  clause  provides  that  'every 
action  against  any  person  for  anything  done  in  pursuance  of 
this  Act  (which  includes  all  Mutiny  Acts,  all  lawful  military 
action  depending  on  the  Mutiny  Acts,  or  on  articles  made 
under  them)  shall  be  brought  in  some  one  of  the  Courts  of 
Record  at  Westminster,  or  in  Dublin,  or  in  India,  or  in  the 
Court  of  Session  in  Scotland.'  This  expression,  '  Court  of 
Record,'  applied  to  the  Courts  of  Westminster  and  Dublin, 
practically  confines  the  power  of  suit  to  the  highest  tribunals 
in  the  country  ;  and  I  am  inclined  to  suspect  that  the  framers 
of  the  section  supposed  that  it  would  have  analogous  effect 
in  India,  and  that  the  actions  referred  to  were  only  intended 
to  be  brought  in  the  old  Supreme  Court  or  present  High 
Courts.  I  entertain  this  suspicion  the  more  strongly  because 
in  certain  former  states  of  the  law  in  India,  I  much  doubt 
whether  an  Indian  Mufassal  court  would  have  been  held  to  be 
a  Court  of  Record.  But  now  the  better  opinion,  grounded  on 
technical  reasons  on  which  it  is  unnecessary  to  dilate,  is  that 
every  civil  court  in  India,  even  a  Small  Cause  court,  is  a 
Court  of  Record. 

The  very  simple  proposal,  therefore,  which  I  now  make 
is  that  we  attempt  to  have  effect  given  to  what  I  cannot 
doubt  is  the  general  intention  of  this  section,  whether  I  am 
right  or  wrong  as  to  its  special  intention.  I  suggest  that  the 
Secretary  of  State  be  moved  to  obtain  through  the  War 
Office  such  an  alteration  of  the  88th  section  of  the  Mutiny 
Act  as  will  place  commanding  officers  in  India  on  the  same 
footing  in  respect  of  civil  liability  for  acts  done  in  the  exer- 
cise of  military  authority,  as  commanding  officers  serving  in 
England,  Ireland,  or  Scotland.     Under  the  amended  section 


PRINSEP'S   PANJAb   theories  335 

actions  of  the  kind  which  the  section  defines,  founded  on  a 
cause  of  action  arising  in  the  parts  of  India  possessing  a  High 
Court  established  by  the  Queen's  Letters  Patent,  or  a  Chief 
Court,  or  a  Recorder's  Court,  would  only  be  brought  to  such 
Court ;  but  as  the  High  Court  of  the  North-Western  Provinces 
and  the  Chief  Court  of  the  Panjab  have  no  ordinary  original 
jurisdiction,  it  will  be  necessary  to  introduce  words  giving 
them  such  jurisdiction  for  the  purpose  of  trying  such  actions  ; 
and  it  must  further  be  provided  that,  if  a  suit  against  a  com- 
manding officer  be  instituted  in  a  court  subordinate  to  the 
High  or  Chief  Court,  and  z.  primd  facie  case  be  made  out  that 
such  suit  is  brought  on  an  act  done  in  the  exercise  of  military 
authority,  it  shall  be  the  duty  of  the  High  or  Chief  Court  to 
transfer  the  case,  and  try  it  as  a  Court  of  Extraordinary 
Original  Jurisdiction. 

Such  provisions  would  not  apply  to  provinces  in  which 
there  is  no  High  Court  or  Chief  Court  or  Recorder's  Court, 
and  thus  if  the  legislative  change  were  to  be  absolutely 
complete,  such  territories  as  Oudh,  the  Central  Provinces, 
Sindh,  &c.,  would  have  to  be  brought  under  the  jurisdiction 
of  High  or  Chief  Courts  to  the  extent  necessary  for  trying 
such  suits ;  but  I  think  it  would  be  better  to  avoid  this  com- 
plication, and  in  the  territories  just  mentioned  to  leave  the 
law  as  it  stands.  Even  thus  the  evil  to  which  our  attention 
has  been  directed,  and  which  I  think  very  formidable,  would 
be  very  sensibly  mitigated. 

If  my  colleagues  assent  to  the  proposed  amendment,  I 
will  prepare  in  the  Legislative  Department  a  clause  which  will 
carry  out  the  intention  I  have  indicated,  and  which  can  be  at 
once  added  to  section  88  of  the  Mutiny  Bill  of  1867. 

MR.   PRINSEP'S  PANJAB   THEORIES 
October  26,  1866. 

This  is,  I  must  say,  one  of  those  proposals  which  are  calcu- 
lated to  drive  to  despair  any  member  of  the  Government  of 
India  who  has  joined  that  Government  straight  from  England. 
The  facts  are  these  : — Eighteen  or  nineteen  years  ago  the 
settlement  of  the  land-revenue  of  the  Panjab,  then  just  brought 


336  MINUTES 

under  British  rule,  was  effected,  and,  as  is  usual  in  India,  the 
status  of  the  various  classes  of  proprietors,  sub-proprietors, 
and  tenants  was  ascertained.  Within  the  last  two  years  Mr. 
Prinsep,  the  Panjab  Settlement  Commissioner,  has  had  a  sort 
of  roving  commission  under  which  he  has  assembled  juries,  if 
they  may  so  be^  called,  of  the  cultivating  classes,  and  by  their 
help  he  conceives  himself  to  have  discovered  that  serious 
mistakes  were  made  in  the  recording  of  rights  at  the  last 
settlement.  Colonel  Lake,  however,  the  Financial  Commis- 
sioner, who  appears  to  have  gone  over  the  same  ground  with 
Mr.  Prinsep,  questions  some  of  his  most  important  results. 
The  Lieutenant  Governor,  Sir  Donald  Macleod,  differs  in  some 
particulars  both  from  Mr.  Prinsep  and  Colonel  Lake,  The 
Viceroy  dissents  to  some  extent  from  all  three,  and  so  does 
the  Foreign  Secretary,  Mr.  Muir.'  Now,  we  know  that  nobody 
connected  with  the  Government  has  had  experience  of  the 
country,  as  regards  actual  contact  with  the  land  and  commerce 
with  the  people,  which  can  be  compared  with  that  of  Mr.  Muir 
and  the  Governor  General.  Sir  Donald  Macleod — I  quote 
Mr.  Grey — '  has  studied  and  observed  the  natives  of  India 
with  more  acuteness  and  accuracy  probably  than  most  public 
men  in  this  country.'  Mr.  Prinsep  '  possesses  special  quali- 
fications '  for  his  inquiry.  Colonel  Lake  finally  is  described 
by  the  Lieutenant  Governor  as  '  the  most  thoughtful  perhaps, 
and  free  from  prejudices,  of  all  the  officers  who  have  adorned 
this  administration.'  I  do  not  in  the  least  deny  the  justice  of 
these  compliments,  but  I  need  scarcely  point  out  the  difficul- 
ties they  place  in  the  way  of  those  who  must  decide  the  point 
mainly  by  evidence  and  authority. 

There  is  further  this  element  of  suspicion — of  course  I 
do  not  use  the  word  in  any  injurious  sense — which  pervades 
the  materials  for  an  opinion.  The  old  settlement  reflected 
the  ideas  on  the  subject  of  property  and  tenant-right  which 
were  then  all  but  universal  in  India,  and  which  nobody  of 
much  credit  denied.  Mr.  Prinsep's  discoveries,  on  the  other 
hand,  and  the  proposals  of  Sir  D.  Macleod  fall  in  with  the 
views  which  have  recently  become  prevalent,  which  have  the 
support  of  the  great  European  interests  in  Lower  Bengal,  and 

»  Now  Sir  William  Muir. 


TRIXSEP'S    TANJXb   THEORIES  337 

which  have  been  advocated  of  late  with  so  much  tenacit\-  and 
vigour  by  Sir  C.  Wingfield  in  Oudh.  The  accusation  that  an 
opponent  is  governed  by  theory  and  sees  the  facts  through 
the  prejudices  which  that  theory  creates  is  common  to  both 
schools.  But  this  is  not  all.  Sir  D.  Macleod  tells  us  that 
'  the  state  of  things  existing  in  the  Panjab  for  a  long  series  of 
years  preceding  annexation  was  such  as  almost  to  extinguish 
proprietary  rights  in  land,  or  at  all  events  to  deprive  them  of 
nearl}-  all  their  value.  The  people  in  consequence  possessed 
but  very  indistinct  ideas  in  regard  to  these  rights,  so  that  the 
best  security  for  a  correct  ascertainment  of  the  rights  and 
relations  of  the  several  classes  connected  with  the  land  is 
wanting.'  The  same  statement,  with  fewer  qualifications,  is 
repeated  several  times  by  the  subordinate  officers  whose 
opinions  appear  in  the  papers.  The  truth  appears  to  be  that 
when  Mr.  Prinsep  proposes  to  redistribute  these  rights,  he 
proposes  to  redistribute  something  which  is  exclusively  the 
product  of  British  rule  in  the  Panjab.  The  rights  are  nothing 
without  the  enjoyment  which  they  carry  with  them,  and  this 
enjoyment  it  is  proposed  to  take  away  from  somebody  who 
now  has  it,  and  to  give  it  to  somebody  else.  When  I  was  in 
the  Panjab  in  1864,  a  very  high  authority  told  me  that  when- 
ever he  questioned  a  person  of  the  Sikh  cultivating  classes 
about  rights  of  property  previous  to  annexation,  the  answer 
was,  '  Why  do  you  ask  me  such  a  question  ?  It  is  you  who 
have  created  property.'  Yet  if  British  rule  created  the  pro- 
perty, I  cannot  see  that  it  has  very  deeply  sinned  if  it  decided 
somewhat  arbitrarily  who  was  to  have  it.  I  should  say  that 
we  should  commit  an  injustice  far  more  deeply  felt  if  we  took 
it  away  from  those  who  have  enjoyed  it  for  fifteen  or  twent}' 
years — no  very  short  period,  as  compared  with  the  whole 
duration  of  British  empire  in  India.  The  transfer  of  property 
has,  moreover,  to  be  effected  in  the  face  of  Colonel  Lake's 
statement  that  when  he  followed  in  Mr.  Prinsep's  footsteps 
he  found  nobody  discontented  with  existing  arrangements. 
Colonel  Lake  further  remarks — and  this  is  exactly  what  I 
should  have  expected — that  the  European  officer  appeared  to 
have  been  a  good  deal  more  interested  in  the  inquiry  than  the 
people  themselves.    While,  then,  I  concur  with  Colonel  Durand 

z 


338  MINUTES 

in  thinking  that  the  existing  arrangements  should  not  be  dis- 
turbed, I  cannot  agree  with  him  in  attaching  any  extraordinary- 
importance  to  Mr.  Prinsep's  results.  What,  in  fact,  did  Mr. 
Prinsep  do  ?  He  interrogated  a  number  of  very  ignorant 
men  about  some  most  intricate  rights  which  are  admitted  to 
have  been  in  abeyance  for  fifteen,  eighteen,  or  nineteen  years, 
and  which,  if  they  existed,  are  admitted  to  have  had  no  value. 
No  doubt  the  poor  and  ignorant  of  all  countries  are  occa- 
sionally the  best  authorities  on  matters  of  usage  and  custom, 
but  this  is  on  condition  that  the  usage  and  custom  are  of 
practical  interest  to  them,  and  mixed  up  with  their  every-day 
life.  An  English  agricultural  labourer  sometimes  evinces  a 
singular  knowledge  of  his  rights  under  the  Law  of  Pauper 
Settlement,  which  is  by  no  means  an  easy  branch  of  English 
law  ;  but  he  certainly  could  never  state  what  the  law  on  the 
subject  was  twenty  years  ago.  Yet  the  Law  of  Pauper  Set- 
tlement has  been,  through  all  his  life,  I  am  sorry  to  say,  a 
subject  of  the  utmost  moment  to  the  English  labourer. 

Nobody  brought  to  India  a  stronger  conviction  than  I 
did  of  the  policy  of  abandoning  all  English  or  European 
generalisations  in  India,  and  of  respecting  Native  usage  even 
though  it  should  be  unreasonable.  And  if  there  was  one  class 
of  usages  which  I  should  have  supposed  more  deserving  of 
respect  than  another,  it  was  the  custom  which  constitutes  the 
tenure  of  land.  But  while  nothing  seems  to  me  to  exceed 
the  tenacity  of  the  Natives  of  India  in  adhering  to  personal, 
family,  and  religious  usages,  and  to  those  customs  of  holding 
property  which  are  closely  implicated  with  family  relations, 
such  as  joint  ownership  and  joint  occupation,  I  must  say  that 
I  have  come  to  the  conclusion,  however  presumptuous  it 
may  be,  that  there  is  a  vast  deal  less  of  actual  custom  regu- 
lating the  tenure  of  land  by  the  cultivating  classes  than  the 
large  assumptions  of  the  Indian  Revenue  Law  on  the  subject 
of  custom  would  lead  one  to  suppose.  If,  indeed,  the  Native 
Governments  which  we  succeeded  were  such  that  their  indis- 
criminate taxation  made  no  practical  distinction  possible 
between  rents  and  imposts,  property  and  tenancy,  beneficial 
occupancy  and  rack-rent,  indistinctness  of  usage  would  seem 
to  be  the  natural  result  of  their   system.     I   do  not   indeed 


TRiNSEr's  tanjAb  theories  339 

impute  to  any  of  the  schools  of  Indian  administrators  which 
have  affirmed  the  possibiHty  of  discovering  Native  usage  on 
all  subjects  that  they  are  merely  theorising  gratuitously — 
least  of  all  to  that  school  which  asserts  that  ownership  is 
everywhere  in  India  limited  by  beneficial  occupancy — because 
such  a  theory  could  by  no  possibility  have  suggested  itself  to 
a  person  under  the  dominion  of  merely  European  ideas  and 
experiences.  But  I  must  say  that  there  is  now  great  reason  to 
believe  that  the  doctrines  of  all  schools  are  founded  on  partial 
observation,  and  that  it  is  the  indistinctness  of  usage  through- 
out India,  taken  as  a  whole,  which  has  tempted  and  enabled 
the  partisans  of  each  school  in  turn  to  attribute  to  its  principles 
this  character  of  universalit}\  At  all  events,  this  is  the  only 
way  in  which  the  conflict  of  authority  can  be  explained  con- 
sistently with  the  reputation  of  the  disputants.  I  will  even 
assert  the  necessity  of  this  explanation  in  interpreting  the 
evidence  which  the  Oudh  inquiry  produced.  However  con- 
clusive it  may  seem  to  be,  I  cannot  forget  that  my  late  col- 
league Sir  H.  Harington  served  in  a  district  of  the  North- 
western Provinces  just  severed  from  Oudh,  and  he  steadfastly 
maintained  that  he  had  found  beneficial  rights  of  occupancy 
existing  there.  And  I  doubt  whether  I  ever  knew  a  man 
more  careful  in  detail  and  patient  in  observation  than  Sir  H. 
Harington. 

In  the  existing  state  of  authority  and  opinion  I  can  see 
no  rule  to  follow,  except  to  abide  by  actual  arrangements, 
whether  founded  or  not  on  an  original  misconstruction  of 
Native  usage.  I  say.  Let  us  stand  even  by  our  mistakes.  It 
is  better  than  perpetual  meddling.  I  am  therefore  entirely 
opposed  to  the  present  proposals,  and  also  to  the  amendments 
of  Act  X.  of  1859  proposed  by  Mr.  Muir.  And  nobody  would 
have  opposed  more  strongly  than  I  any  disturbance  of  Lord 
Canning's  taluqdari  arrangements  in  Oudh,  if  only  I  could 
have  persuaded  m}'self  that  I  understood  what  Lord  Canning 
intended  in  respect  of  tenant  right  and  sub-proprietary  right. 

I  must  add  that  I  do  not  admit  the  correctness  of  many 
of  Sir  D.  Macleod's  remarks  as  to  the  analogy  between  bene- 
ficial occupancy  and  English  copyhold.  There  is  not  the 
smallest  reason  for  believing  that  copyhold  was  an  objection- 

z  ? 


340  MINUTES 

able  form  of  tenure  so  long  as  the  copyholders  were  for  the 
most  part  actual  cultivators  of  the  soil  ;  on  the  contrary,  I 
venture  to  say  that,  in  the  legal  or  general  literature  of  1 50 
years  since,  it  will  be  found  spoken  of  invariably  with  respect. 
But  the  great  rise  in  the  value  of  land  at  the  end  of  the  last 
century  caused  even  land  of  copyhold  tenure  to  become  a 
merchantable  commodity,  and  no  doubt  the  incidents  of  the 
tenure  are  such  as  to  render  copyholds  an  inconvenient  invest- 
ment or  form  of  property.  Though  property  in  the  Panjab  is 
very  different  from  what  it  was  under  the  Sikh  rule,  it  would 
be  absurd  to  compare  it  with  landed  property  in  England.  If 
the  machinery  of  the  Copyhold  Commission — which,  I  should 
observe,  is  very  cumbrous  and  tedious,  and  very  little  appli- 
cable to  India — is  to  be  employed  anywhere  for  the  extinction 
of  tenant-right,  it  ought  to  be  first  employed  in  Lower  Bengal, 
where,  owing  to  the  existence  of  great  capitalist  industries, 
there  really  are  strong  reasons  for  rendering  land  as  market- 
able as  possible  ;  but  it  seems  to  me  pedantry  to  apply  it  to 
the  Panjab. 

If  beneficial  occupancy  in  the  Panjab,  as  it  exists  at  the 
present  moment,  is  to  be  abolished  or  limited  at  all,  such 
abolition  or  limitation  can  only  be  justified  on  Mr.  Prinsep's 
grounds.  But  I  should  feel  much  safer  in  applying  the  most 
sweeping  theory  of  the  great  European  thinkers  on  political 
economy,  or  the  most  hurried  generalisation  of  great  Indian 
administrators,  than  in  acting  on  the  opinion  of  ignorant  and 
puzzled  peasants  on  difficult  questions  in  which  they  have 
never  had  a  practical  interest.  We  may,  at  all  events,  be  sure 
that  amid  the  accumulated  wealth  which  is  the  product  of  the 
peace  and  security  flowing  from  our  rule,  all  classes  connected 
with  the  soil  are  immeasurably  better  off  than  they  were 
under  Native  Governments,  and  are  more  than  compensated 
for  any  errors  we  may  have  committed  in  the  mere  adjust- 
ment of  their  mutual  rights. 


See  Mr.  Maine's  speech  on  the  Panjab  Tenancy  Bill,  above,  pp.  268-285 


IRRIGATION-WORKS   AND   RAILWAYS  34I 

IRRIGATION-WORKS  AND  RAIIWAYS 

November  8,  1S66. 

In  expressing  my  full  concurrence  with  Sir  William  Mans- 
field's conclusion  that  irrigation  works  should  be  constructed 
by  the  Government,  while  railways  should  be  committed  to 
the  enterprise  of  joint-stock  companies,  I  may  be  permitted 
to  say  that  I  do  so  on  the  distinct  assumption  that  the  per- 
mission recently  accorded  to  us  by  the  Secretary  of  State,  to 
raise  a  loan  for  works  of  irrigation,  will  not  be  withdrawn  or 
seriously  modified. 

2.  I  make  this  reservation  because  I  cannot  but  feel  that 
the  effect  of  the  last  discussion  which  took  place,  as  to  the 
agency  to  be  employed  in  creating  and  extending  irrigational 
works,  has  been  to  expose  the  Government  of  India  to  much 
misconstruction.  Almost  exactly  three  years  ago,  there  being 
about  three  millions  sterling  to  spare  from  the  cash  balances, 
and  the  Home  Government  having  sanctioned  the  expenditure 
of  part  of  the  surplus  in  reproductive  public  works,  the  late 
Earl  of  Elgin  initiated  a  discussion  on  the  question  whether 
works  of  irrigation  were  best  committed  to  the  agency  of 
Government  or  to  that  of  joint-stock  companies.  The  con- 
clusion of  the  whole  Government  of  India,  as  then  constituted, 
wath  the  qualified  exception  of  Sir  Charles  Trevelyan,  coin- 
cided with  that  of  all  the  members  of  the  Government  of 
Bombay,  of  our  most  experienced  engineer  and  revenue  offi- 
-cers,  and  of  Lord  Elgin's  successor,  in  giving  the  preference 
to  Government  agency.  But  shortly  afterwards  the  excess  of 
the  cash  balance  was  diverted  to  another  purpose.  I  am  not 
for  a  moment  disputing  the  wisdom  of  the  measure  from  a 
financial  point  of  view,  but  the  English  criticisms  elicited  by 
the  deplorable  famine  in  Orissa  show  that  our  character  has 
seriously  suffered  by  it.  A  discussion,  having  an  eminently 
practical  object,  a  discussion  of  the  class  of  public  works  to 
which  a  considerable  fund  ready  in  hand  had  best  be  devoted, 
has  assumed  the  appearance  of  a  purely  speculative  contro- 
versy, begun  in  the  face  of  dangers  which  are  always  immi- 
nent in  India,  and,  possibly,  intended  as  a  pretext  to  cover 
carelessness  or  irresolution.      It  is,  therefore,  most  important 


342  MINUTES 

to  US  that  the  financial  point  should  be  taken  as  settled  once 
for  all. 

3.  Making,  then,  the  above  assumption,  and,  further, 
making  the  admission  that  it  would  be  almost  criminal  to 
reject  the  agency  of  joint-stock  companies  unless  we  are 
prepared  to  direct  all  our  energies  to  the  prompt  construction 
of  irrigational  works,  I  adhere  to  the  opinion  that  this  class 
of  public  works  is  the  last  which  the  Government  should  allow 
to  pass  out  of  its  own  hands.  I  have  carefully  read  all  that 
has  been  written  in  India  in  condemnation  of  the  conclusion 
arrived  at  by  Government ;  but  the  fairest  of  the  adverse 
criticisms  directed  against  it  seem  rather  to  strengthen  it  than 
otherwise.  It  being  admitted  that  the  dangers  indicated  in 
the  Government  Minutes  are  real  and  not  imaginary,  certain 
conditions  in  the  contracts  with  the  existing  irrigation  com- 
panies have  been  specified  as  neutralising  them.  But  these 
conditions  seem  to  me  exactly  those  which  deprive  the  under- 
taking on  which  they  are  imposed  of  the  characteristic 
advantages  of  private  enterprise. 

4.  With  regard  to  the  proposed  extension  of  the  Indian 
railways,  the  Minutes  of  the  Viceroy,  of  the  Governor  of 
Bombay,  and  of  the  members  of  their  respective  councils 
suggest  several  questions— at  what  pace,  and  in  what  order, 
the  new  railwa)-s  shall  be  made  ;  whether  they  shall  be  con- 
structed by  the  Government  or  by  joint-stock  companies,  and, 
in  the  last  alternative,  whether  they  shall  be  committed  to 
companies  under  the  system  of  guaranteed  interest,  or  on  any 
other  principle. 

5.  Putting  aside  for  awhile  the  questions  of  pace  and 
order,  I  fully  adopt  the  opinion  of  the  Commander-in-Chief, 
that,  of  all  public  works,  railways  should  be  the  first  given  up 
to  joint-stock  companies,  inasmuch  as  their  agency  is,  in  this 
case,  not  only  not  inferior,  but,  on  the  whole,  much  superior 
to  that  of  Government.  The  considerations  urged  by  His 
Excellency  in  his  powerful  Minute  are,  I  think,  nearly  summed 
up  in  the  proposition  that  money  subscribed  by  a  joint-stock 
company  for  the  construction  of  a  railway  is  carried  to  a 
separate  account  and  never  diverted  from  it.  Now,  Govern- 
ments are  under  peculiar  temptations  which  render  it  extremely 


IRRIGATION-WORKS   AND   RAILWAYS  343 

difficult  for  them  to  keep  available  funds  to  such  an  account, 
or  to  continue  supplying  fresh  funds  which  may  be  carried  to 
it — a  point  illustrated  by  the  perpetual  encroachments  of 
European  Governments  on  the  sinking  funds  set  apart  for  the 
extinction  of  their  public  debt.  Everybody  will  agree  that, 
abstractedly,  there  may  always  be  emergencies  which  could 
justify  Governments  in  appropriating  to  general  purposes 
money  borrowed  for  special  objects,  or  in  discontinuing  loans 
for  special  ends  with  the  view  of  borrowing  for  general 
purposes.  War  in  Europe  and  mutiny  in  India  would  always 
be  considered  such  emergencies.  But  apart  from  such  extreme 
cases,  there  are  many  influences  at  work  on  a  Government  like 
this  which  tend  either  to  arrest  the  process  of  borrowing  for 
railway  construction,  or,  if  borrowing  be  continued,  to  con- 
tinue it  for  other  objects.  One  financier  is  eager  to  show  a 
surplus,  and  in  his  unwillingness  to  add  to  the  annual  charge 
for  interest  on  debt  is  easily  persuaded  that  railways  have 
gone  far  enough.  Another  feels  that  a  perpetually  borrowing 
Government,  whatever  reasons  it  may  assign  for  its  policy,  is 
never  in  good  credit.  Or,  again,  some  previously  unknown 
or  temporary  cause  may  elevate  a  different  class  of  public 
works  into  the  importance  which  irrigation  works  have 
recently  assumed,  and  the  simplest  way  of  meeting  the 
sudden  necessity  will  be  the  contraction  of  expenditure  on 
railways.  No  amount  of  determination  in  the  Government,  as 
constituted  at  any  given  time  ;  no  degree  of  positiveness  in 
publicly  stating  an  intention,  can  afford  such  security  for  the 
prosecution  and  completion  of  a  line  of  railway  as  is  given  by 
its  concession  to  a  company.  Every  one  of  us  will  admit,  I 
presume,  that,  but  for  public  companies,  we  should  not  have 
had  the  present  Indian  railways  ;  and  there  is  much  even  in  the 
present  discussion  which  may  lead  us  to  doubt  whether,  if  we 
undertake  to  construct  the  remaining  lines,  they  will  ever  be 
constructed. 

6.  It  may  be  added  that  the  moral  effect  of  borrowing 
through  companies,  and  borrowing  directly  for  public  works, 
is  by  no  means  the  same.  I  believe  that  a  good  deal  of 
harm  is  acknowledged  to  have  been  done  to  the  East  India 
Company,  even  before  the  mutiny,  by  the  accusation  that  it 


344  MINUTES 

was  a  perpetually  borrowing  Government.  The  defence  made 
for  it  always  was,  that  it  borrowed  for  the  purpose  of  invest- 
ment in  public  works  ;  but  the  apology,  though  true,  did  not 
exclude  some  degree  of  discredit.  On  the  other  hand,  the 
immense  loans  virtually  raised  for  railways  are  not  believed 
to  have  in  any  way  affected  the  Company's  credit. 

7.  Of  the  disadvantages  involved  in  committing  railways 
to  companies  which  His  Excellency  the  Viceroy  has  noticed, 
one — the  extravagance  of  the  system — is  exclusively  owing 
to  the  peculiar  operation  of  the  guarantee.  The  others,  no 
doubt,  have  a  real  existence,  but  they  are  in  course  of  abate- 
ment. The  sedulous  efforts  of  the  Viceroy  himself  have 
already  done  something,  and  will  doubtless  do  more,  to 
diminish  the  most  intolerable  evil  of  all,  the  ill-treatment  of 
the  Native  passengers.  Moreover,  both  this  and  other  habitual 
breaches  of  the  duty  which  the  companies  owe  to  the  public 
will  be  committed  with  less  impunity  if  the  legislation  con- 
templated at  the  coming  sitting  of  the  Council  be  carried 
through,'  and  since  the  recent  multiplication  of  the  tribunals 
to  which  British  railway  servants  are  amenable. 

8.  If  it  be  settled  that  the  agency  of  joint-stock  companies 
is  to  be  employed  in  constructing  the  new  railways,  it  has 
yet  to  be  decided  whether  the  Government  aid,  which  must 
undoubtedly  be  given  to  them,  shall  be  given  in  the  form  of 
guaranteed  interest  or  in  any  other  shape.  The  Secretary, 
Colonel  Dickens,  deprecates  our  entering  into  this  question 
until  the  great  mass  of  minutes  and  memoranda  which  has 
been  written  upon  it  has  been  critically  examined.  But  the 
contents  of  these  papers  will,  I  believe,  be  found  to  be  nothing 
than  (i)  illustrations  of  the  characteristic  inconvenience  of  the 
guarantee,  the  extravagance  into  which  it  tempts  the  com- 
panies ;  (2)  a  variety  of  schemes,  of  which  our  late  Secretary, 
Colonel  Strachey,  was  the  chief  author,  for  subsidising,  or 
otherwise  assisting,  the  companies  under  such  conditions  as 
might  be  expected  to  remove  the  temptation  to  extravagant  ex- 
penditure. As  to  the  first  point,  the  fact  of  extravagance,  there 
can  be  no  question.     The  security  and   the  rate  of  dividend 

'  See  the  repealed  Acts  IV.  of  1879  present  Indian  Railway  Act,  IX.  of 
(sees.   5-9)  and  IV.   of  1883,  and  the       1890,  chaps,  iv.,  vi.,  vii.,  and  ix. 


IRRIGATION-WORKS   AND    RAILWAYS  345 

guaranteed  being  both  better  than  could  ordinarily  be  obtained 
in  the  market,  it  has  been  the  interest  of  the  existing  railway 
companies  to  sink  as  much  capital  as  possible  in  their  lines. 
It  must  be  recollected,  however,  that  while  these  lines  were 
in  process  of  construction  none  but  the  most  sanguine  of 
business  men  were  clearly  persuaded  that,  when  opened,  they 
could  possibly  earn  more  than  the  guaranteed  interest.  But 
the  example  of  the  Great  Indian  Peninsular,  of  the  East  Indian, 
and  of  the  Eastern  Bengal  Railways,  has  now  proved  that 
this  impression  was  unfounded,  and  the  prospect  of  ultimately 
earning  a  dividend  higher  than,  and  independent  of,  the 
Government  guarantee,  will  henceforward  prove  an  effective 
check  on  wastefulness  as  respects  all  lines  carefully  selected 
with  a  view  to  their  commercial  prospects.  No  doubt,  in  the 
construction  of  such  lines  as  that  from  Lahore  to  Peshawar — 
lines  in  regard  to  which  commercial  profit  is  a  secondary  con- 
sideration— there  will  still  be  risk  of  extravagance  ;  and  the 
utmost  vigilance  of  Government,  rendered  more  effectual 
through  past  experience,  will  be  needed  to  restrain  it.  Indeed, 
the  line  to  Peshawar  appears  to  be  one  of  the  few  which 
Government  might,  perhaps,  keep  in  its  own  hands,  since  the 
military  and  political  objects  for  which  it  will  chiefly  be  con- 
structed are  of  a  class  not  likely  to  lose  their  importance  in 
the  eyes  of  statesmen.  However  this  may  be,  it  is  certain 
that  if  joint-stock  companies  are  called  on  at  all,  it  must  be 
on  the  principle  of  guaranteed  interest.  It  will  be  found,  I 
imagine,  on  Colonel  Strachey's  return  to  India  that  nobody 
is  more  satisfied  than  he  of  the  impracticability  of  all  the 
plans,  many  of  them  displaying  remarkable  sagacity  and 
ingenuity,  which  have  been  proposed  as  substitutes  for  the 
guarantee  system.  No  proposal  which  does  not,  to  a  certain 
extent,  eliminate  the  speculative  element  in  Indian  under- 
takings is  in  the  very  least  likely  to  find  favour  wnth  the 
English  money  market ;  and  whether  the  Government  borrows 
directly,  or  through  joint-stock  companies,  it  will  never  attract 
English  capital  to  India  in  large  quantities  unless  it  offers 
the  capitalist  a  certain  minimum  profit  on  his  investment. 

9.  As  regards  the  rate  of  speed  at  which  the  new  railways 
should  be  constructed,  the  Bombay  Government  proposes  to 


34^  MINUTES 

commence  the  Indus  Junction  line,  and  the  Hne  from  Delhi 
to  Guzerat,  at  once,  and  in  each  case  at  both  ends  simul- 
taneously ;  and  it  further  lays  down  principles  which  would 
apparently  justify  the  prompt  commencement  of  all  projected 
railways,  at  all  events  in  Central  and  North- Western  India. 
There  is  so  much  in  Sir  Bartle  Frere's  Minute  with  which  I 
entirely  concur  that  it  is  with  some  regret  I  feel  myself  com- 
pelled to  join  the  Commander-in-Chief  in  lamenting  that  the 
picture  of  the  capabilities  of  India,  which  we  have  received 
from  Bombay,  should,  on  the  whole,  be  so  greatly  overcharged 
with  colour.  It  is  quite  true  that  the  ingenious  expedient  to 
which  Sir  Bartle  Frere  has  had  recourse,  of  superposing  on  a 
part  of  the  map  of  India  outlines  of  the  principal  European 
countries,  may  convey  to  an  English  eye  a  juster  idea  than 
has,  perhaps,  been  presented  hitherto  of  the  scale  on  which 
the  Government  of  India  works;  but  it  is  equally  true  that 
any  contrivance  which  leads  our  countrymen  at  home  to 
measure  the  wealth  and  productiveness  of  India,  either  by 
mere  space,  or  even  by  space  combined  with  density  of  popu- 
lation, is  in  a  high  degree  delusive.  There  are  symbols  which 
speak  to  the  mind  through  the  eye  almost  as  vividly  as 
coloured  diagrams,  and  certainly  more  truly.  Such  symbols 
are  figures.  Now,  if  the  area  sketched  by  Sir  Bartle  Frere  be 
somewhat  reduced,  so  as  to  include  only  the  countries  which 
will  be  served  by  the  railway  from  Delhi  to  Guzerat,  and  so 
as  to  exclude  the  tracts  to  which  the  Indus  line  on  the  one 
side,  and  the  line  from  Allahabad  to  Bombay  on  the  other, 
will  be  of  principal  importance,  the  space  which  will  remain, 
and  which  will  be  nearl}'  conterminous  with  the  Native  States 
of  those  parts,  will  still  be  large  enough  to  contain  the  largest 
of  the  European  countries  figured  on  the  map.  But  the 
aggregate  revenue  of  the  European  countries  thus  sketched 
cannot  be  much  less  than  300  millions  sterling,  and  the 
revenue  of  the  very  smallest  and  poorest  of  them  is  not  less 
than  ten  millions.  What  is  the  revenue  of  the  Indian  territory 
contained  in  the  outline  which  makes  the  largest  and  richest 
of  these  European  States  look  so  insignificant  ?  Probably 
nobody  can  tell  its  exact  amount ;  but  I  am  informed,  on  very 
high  authority,  that  it  does  not  exceed  three  millions  sterling. 


IRRIGATION-WORKS   AND   RAILWAYS  347 

Nor  is  this  all.  Revenue  in  this  case  includes  much  which, 
in  Europe,  is  rent,  and  it  is  further  in  these  particular  coun- 
tries levied  with  a  severity  of  which  the  least  scrupulous 
European  Government  would  be  ashamed.  I  do  not  for  a 
moment  doubt  that  the  Delhi  and  Guzerat  Railway  has  a  fair 
prospect  of  becoming  profitable  through  the  growing  wealth 
and  commerce  of  those  parts  of  British  India  which  it  will 
join  to  the  sea  ;  but  its  prospects  certainly  cannot  be  measured 
by  a  mode  of  illustration  which  takes  no  account  of  the  cha- 
racteristics of  India  as  a  whole,  which  Sir  William  Mansfield 
has  called  to  our  recollection,  and  still  less  of  those  character- 
istics of  these  particular  provinces  which  must  always  impede 
their  advance  in  wealth,  their  comparative  maladministration 
by  the  Governments  to  which  they  are  subject. 

10.  It  would  be  a  not  inconsiderable  evil  if,  by  unduly 
glowing  descriptions  of  the  capabilities  of  India,  British 
capital  were  attracted  hither  in  greater  quantities  than  would 
admit  of  its  returning  a  reasonably  large  and  tolerably  prompt 
return  to  the  capitalist.  Theoretically,  no  doubt,  there  is 
scarcely  any  limit  to  the  amount  of  capital  which  may  be 
bestowed  in  India  with  advantage  to  the  country  ;  but  the 
results  to  the  British  dominion  in  India,  and  thus  ultimately 
to  the  country,  may  be  by  no  means  of  unmixed  good.  If 
private  adventurers  bring  their  capital  to  India,  and  are  dis- 
appointed by  the  return,  the  immediate  consequence  is  that 
the  fault  is  laid  at  the  doors  of  Government.  Such  complaints 
fructify  in  wide  schemes  for  revolutionising  our  s}'stem,  which 
find  an  echo  in  England  ;  and  hence  this  Government — which 
(type  of  conservatism  though  it  appears  to  some  persons)  is 
really  one  of  the  most  unstable  in  the  world,  through  the 
rapid  changes  in  lis  personnel,  and  through  the  alternate  rise 
and  fall  of  the  conflicting  doctrines  of  its  great  administrative 
schools — is  still  further  disturbed  by  cruder  theories  of  home 
manufacture.  Should,  however,  this  particular  risk  be  averted 
by  the  Government  guaranteeing  the  capitalist  a  minimum 
return  on  his  investment,  the  premium  paid,  if  in  excess,  can 
only  be  supplied  by  over-taxation,  the  one  injury  which,  next 
to  outrage  on  their  religious  feelings,  the  people  of  India  are 
likely  actively  to  resent. 


348  MINUTES 

11.  I  entirely  agree  with  the  Commander-in-Chief  that 
the  true  hmits  to  the  extension  of  our  raihvay  system  are, 
first,  the  amount  of  capital  the  English  money  market  is 
ready  to  supply  at  a  reasonable  rate,  which  is  a  question  for 
the  Secretary  of  State  ;  and  next,  the  amount  which  can  be 
spared  from  our  revenues,  without  over-taxation,  for  the  pay- 
ment of  guaranteed  interest,  which  is  more  especially  a  ques- 
tion for  the  Government  of  India.  And  I  heartily  join  in  His 
Excellency's  wish  that  this  last  amount  should  no  longer  be 
left  to  fluctuate,  but  should  be  fixed  at  a  permanent  figure 
until  our  railway  system  is  completed. 

12.  Assuming  that  our  available  margin  of  revenue  does 
not  permit  the  simultaneous  commencement  of  all  the  three 
lines  before  us,  or  even  of  two  of  them,  the  further  question  of 
the  order  in  which  they  should  be  undertaken  is  one  on  which 
it  would  be  presumptuous  in  me,  with  my  comparatively 
limited  knowledge  of  India,  to  offer  a  confident  opinion.  But 
if  I  were  absolutely  compelled  to  pronounce  on  the  point,  I 
am  bound  to  say  that  I  should  concur  with  His  Excellency 
the  Viceroy  rather  than  with  the  Commander-in-Chief.  As 
I  understand  it,  the  Lahore  and  Peshawar  Railway  is  almost 
exclusively  recommended  by  military  and  political  reasons. 
On  the  other  hand,  the  importance  of  the  Delhi  and  Guzerat 
line  is  chiefly,  if  not  wholly,  commercial.  At  all  events,  until 
the  Minute  is  received  in  which  Sir  R.  Napier  promises  to 
maintain  the  contrary  opinion,  I  think  I  may  venture  to  make 
this  assumption,  supported  as  it  is  by  the  facts  that  the  princes 
whose  territory  the  railway  would  pierce  are  peaceable  and 
well-disposed,  and  that  there  will  shortly  be  railway  commu- 
nication between  Bombay  and  North-Western  India,  through 
the  western  limb  of  the  Great  Indian  Peninsula  line.  But 
the  Multan  and  Kotri  line  would  appear  to  have,  at  the 
same  moment,  both  great  military  and  great  commercial 
importance.  It  is  only  second  to  the  Lahore  and  Peshawar 
line  in  the  addition  it  will  make  to  the  security  of  the  North- 
Western  Frontier,  and  it  will  connect  with  the  sea,  by  an  easy 
line  of  access,  a  series  of  provinces  of  which  some  are  growing 
in  wealth  more  rapidly  than  any  other  part  of  India  ;  while 
nearly  all  of  them,  through  their  exclusive  subjection  to  the 


JUDGE   ADVOCATE   GENERAL  349 

British  Government,  possess  a  guarantee  of  progress  which 
is  wanting  in  most  of  the  territory  traversed  by  the  raihvay 
which  is  to  join  Delhi  with  Guzerat.  While,  therefore,  I  state 
my  view  with  diffidence,  I  would  place  the  three  railwa}'s  in 
the  following  order  : — 

(i)  Multan  and  Kotri. 

(2)  Delhi  and  Guzerat. 

(3)  Lahore  and  Peshawar. 


JUDGE  ADVOCATE    GENERAL 

September  10,  1867, 

I  HAVE  long  been  of  opinion  that  it  is  urgently  necessary  to 
place  a  professional  lawyer  at  the  head  of  the  Judge  Advocate 
General's  Department  at  head-quarters  in  India.  Several 
further  changes  will,  in  my  humble  judgment,  be  required 
before  the  system  of  military  justice  in  this  country  is  brought 
into  a  satisfactory  condition  ;  but  the  measure  on  which  our 
views  are  requested  by  the  Secretary  of  State  is  a  first  step  in 
what  I  believe  to  be  the  right  direction,  and  it  appears  to  me 
to  be  imperative. 

2.  The  burden  of  proving  that  it  is  expedient  to  have  a 
military  man  at  the  head  of  this  department  in  India  rests,  I 
submit,  on  those  who  assert  the  expediency.  The  Judge 
Advocate  General  at  head -quarters  in  England  is  a  professional 
lawyer.  So  also,  if  I  am  not  mistaken,  is  the  Judge  Advocate 
of  the  Fleet.  If  it  be  said  that  the  army  in  India  is  rather  in 
a  position  analogous  to  that  of  an  army  on  a  campaign,  I 
reply,  with  His  Excellency  the  Commander-in-Chief,  that  in 
the  last  two  European  wars  of  any  magnitude  in  which  British 
troops  took  part — the  Peninsular  War  and  the  Crimean  War — 
the  Judge  Advocates  General  attached  to  the  commanders  of 
the  forces  were  members  of  the  Bar. 

3.  It  cannot  be  said  that  the  reasons  for  administering 
military  justice  with  regularity  and  precision  are  weaker  in 
India  than  in  England.  On  the  contrary,  they  are  obviously 
much  stronger.  A  court-martial  in  India  is  the  ordinary 
criminal  court  for  the  trial  of  civil  offences  committed  by 
persons  amenable  to  the  Articles  of  War  at  a  distance    of 


350  MINUTES 

1 20  miles  from  a  presidency  town.  All  the  considerations 
which  have  led  to  the  trial  of  persons  committing  such  offences 
in  England  by  the  ordinary  criminal  courts  make  in  favour  of 
assimilating  the  military  judicial  system  of  India,  as  far  as 
may  be  practicable,  to  that  of  regular  civil  tribunals. 

Nor  can  it  be  argued  that,  in  consequence  of  the  obscurity 
of  military  trials  in  India,  a  rougher  system  suffices  for  this 
country.  On  the  contrary,  there  is  much  more  need  here  than 
at  home  for  that  attention  to  definite  rule  which  is  apparently 
necessary  to  satisfy  the  popular  sense  of  justice.  Owing  to  the 
paucity  of  topics  of  interest  in  India,  the  public  attention  is 
fastened  on  military  trials  to  a  degree  unknown  at  home,  and 
the  popular  verdict  is  echoed  in  England,  often  too  late  for 
review  or  reversal. 

5.  Abstractedly  it  seems  to  me  almost  as  difficult  to  show 
that  a  military  man  should  be  at  the  head  of  the  Judge  Advo- 
cate General's  Department  as  to  prove  that  a  lawyer  would 
make  a  suitable  Adjutant  General.  My  impression  is  that 
the  subjection  of  the  department  to  strict  professional  control 
has  only  been  postponed  from  the  difficulty  which  once  pre- 
vailed in  India  of  obtaining  a  competent  lawyer  for  the  office 
for  anything  like  a  reasonable  remuneration. 

6.  At  the  same  time,  I  am  anxious  to  state  that  I  share 
to  a  considerable  extent  the  opinions  expressed  by  His  Excel- 
lency the  Commander-in-Chief  in  his  letter  of  February  5, 
1867,  to  the  Judge  Advocate  General  in  England.  I  wish  to 
separate  myself  from  the  popular  assailants  of  the  office,  who 
base  their  charges  against  it  on  allegations  of  servility  and  in- 
competence. 

7.  As  to  the  imputation  of  want  of  independence,  I  will 
merely  add  to  Sir  W.  Mansfield's  vindication  the.  remark  that 
the  charge  is  one  which  it  is  necessarily  very  easy  to  bring 
against  a  military  man,  and  which  it  is  necessarily  difficult  for 
him  to  repel.  So  long  as  subordination  is  among  the  chief 
of  military  virtues,  so  long  indeed  as  it  competes  with  courage 
for  the  first  place  among  those  virtues,  the  assailant  of  the 
legal  adviser  of  a  commander-in-chief  can  always  insinuate  a 
charge  by  substituting  a  bad  name  for  a  good  one,  by  changing, 
as  Rentham  would  have  said,  a  eulogistic  into  a  dyslogistic 


JUDGE   ADVOCATE   GENERAL  351 

term.  It  is  somewhat  hard  on  the  Judge  Advocate  General 
that  he  should  be  placed  in  the  apparent  dilemma  (and  I 
admit  it  is  for  the  most  part  only  apparent)  of  defending 
himself  against  the  reproach  of  disqualification  at  the  cost  of 
disclaiming  a  high  military  quality. 

8.  I  have  offered  this  observation  chiefly  for  the  sake  of 
pointing  out  that  the  charge  of  want  of  independence  is  much 
less  likely  to  be  advanced  against  a  professional  lawyer  in  the 
position  of  Judge  Advocate  General.  Most  assuredly  the 
pursuits  of  a  lawyer  are  no  complete  protection  against  the 
misleading  influences  of  friendship,  partisanship,  or  corrupt 
expectation.  But  unquestionably  his  professional  instincts  do 
to  some  extent  protect  him,  and  are  popularly  believed  to 
protect  him,  against  those  influences.  The  servility  which  a 
lawyer  contracts  in  the  practice  of  his  profession  is  servility  to 
certain  definite  rules,  principles,  distinctions,  and  doctrines- 
The  discredit  which  disregard  of  these  canons,  even  through 
ignorance,  hangs  upon  him,  is  as  deeply  felt  as  any  professional 
penalty  can  be  ;  and  it  is  in  truth  the  fear  of  this  discredit 
which  counteracts  the  evils  attendant  on  professional  advocacy 
when  concerned  with  facts.  If  there  be  any  member  of  the 
profession  to  which  I  have  the  honour  to  belong  who,  for  the 
sake  of  serving  a  friend  or  patron,  would  deliberately  risk  the 
imputation  of  having,  in  a  professional  opinion  or  judicial 
decision,  propounded  bad  law,  I  can  only  say  that  I  have  not 
had  the  fortune  or  misfortune  to  meet  him. 

9.  On  the  accusation  of  incompetence,  feeling  as  I  do  the 
futility  of  encountering  a  general  charge  by  a  general  defence, 
I  think  it  best  to  adduce  my  own  experience.  I  have  not 
seen  very  much  of  the  work  of  the  Judge  Advocate  General's 
Department,  but  I  have  from  time  to  time  seen  more  or  less 
of  it,  and  what  I  have  .seen  in  no  way  bears  out  the  assertion 
of  incapacity.  It  is  in  a  high  degree  careful  and  minute  ;  in 
truth,  its  faults  are  over-minuteness,  and,  if  I  may  so  put  it,  a 
certain  disregard  of  the  proportionate  importance  of  the  facts 
reported  upon  ;  the  very  faults,  indeed,  which  might  be  ex- 
pected in  gentlemen  engaged  in  a  professional  occupation, 
but  deprived  of  the  tests  and  correctives  supplied  by  actual 
professional   life  and    practice.     These  defects,  which  prove 


352  MINUTES 

nothing  against  the  intelHgence  or  knowledge  of  the  depart- 
ment, but  which  certainly  have  a  tendency  to  expose  it  to  the 
imputation  of  occasional  want  of  common  sense,  are  not  ordi- 
narily found  in  a  professional  English  lawyer,  if  properly 
selected.  Such  a  professional  adviser  would  also  be  able  to 
contribute  a  kind  of  assistance  little  likely  to  be  obtained 
from  the  department  as  at  present  constituted.  He  would  be 
able  to  judge,  not  only  what  is  the  aspect  of  alleged  facts  on 
paper,  but  what  aspect  they  are  likely  to  assume  as  orally 
described  by  witnesses,  or  as  distorted  and  glossed  over  by 
advocacy;  and  what  effect  they  are  likely  to  have  on  a  tri- 
bunal which,  though  undoubtedly  more  cultivated  and  more 
diligent  in  duty  than  average  juries,  has  nevertheless  many  of 
those  peculiarities  of  a  popular  tribunal,  of  which  every  legal 
adviser  is  practically  obliged  to  take  account. 

lo.  The  main  ground  on  which  I  urge  the  advisableness 
of  appointing  a  professional  Judge  Advocate  General  is  iden- 
tical with  that  taken  up  by  Sir  W.  Mansfield.  Whether  the 
work  of  the  Judge  Advocate  General's  Department  be  good 
or  bad,  the  popular  want  of  confidence  in  it  produces  fruits 
which  seem  to  me  in  the  highest  degree  injurious.  What  I 
assert  is,  that  the  Commander-in-Chief  in  India  is  practically 
made  responsible  for  the  due  discharge  of  duties  which  the 
theory  of  military  justice  does  not  impose  on  him.  That 
theory  I  believe  to  be  that,  on  all  technical  questions,  the 
opinion  of  the  Judge  Advocate  General  is  conclusive,  and  that 
the  province  of  the  Commander-in-Chief  is  to  take  opinion  or 
decision  just  as  it  is  given  out  of  the  hands  of  his  legal  adviser, 
and  then  to  consider  what  practical  application  it  shall  receive, 
regard  being  had  to  the  interests  and  morality  of  the  army 
under  his  command.  But  I  am  quite  unable  to  discover  that 
the  boundaries  between  these  functions  are  in  the  faintest 
degree  recognised  by  popular  opinion,  which  seems  to  me 
systematically  to  confound  the  question  whether  a  right  dis- 
cretion has  been  exercised  with  the  question,  whether  a  right 
jucigment  has  been  formed  upon  evidence  or  law.  There 
appear  to  me  to  be  but  two  ways  of  explaining  this.  Either 
the  opinion  on  technical  points  is  supposed  to  have  been 
^dictated  by  the  Commander-in-Chief  from  the  first,  so  that  he 


JUDGE   ADVOCATE   GENERAL  353 

is  practically  responsible  for  it,  or  else  the  opinion  is  believed 
to  be  without  value  in  itself,  so  that  the  Commander-in-Chief, 
however  little  his  previous  habits  of  life  may  have  qualified  him 
for  such  inquiries,  is  thought  just  as  capable  of  investigating 
the  merits  of  the  question  solved  as  the  author  of  the  solution. 
In  other  words,  we  are  brought  round  to  the  alternative 
charge  of  servility  or  incompetence. 

11.  It  seems  to  me  the  merest  justice  to  the  officer  com- 
manding the  forces  in  India  that  he  should  be  relieved  from 
responsibilities  which  neither  the  theory  nor  the  necessary 
incidents  of  his  position  require  him  to  satisfy.  On  all  techni- 
cal questions — questions  of  the  soundness  of  particular  legal 
propositions — of  the  sufficiency  or  insufficiency  of  certain 
testimony  to  sustain  a  particular  conclusion — of  the  propriety 
or  impropriety  of  admitting  or  rejecting  certain  evidence, — 
the  opinion  of  the  Judge  Advocate  General  should  be  regarded 
as,  if  not  necessarily  impregnable,  at  all  events  sufficiently 
solid  to  completely  justify  the  Commander-in-Chief  in  making 
it  the  basis  of  ulterior  action.  It  is  idle  to  say  that  the  opinion 
of  a  lawyer  of  good  repute  would  not  be  accepted  as  such  a 
justification.  Every  day  in  England,  both  in  public  and 
private  life,  men  are  held  blameless  for  particular  lines  of 
action  because  they  have  had  recourse  to  the  best  legal  advice 
at  their  command.  The  Commander-in-Chief,  so  advised, 
and  acting  on  the  advice  received,  would,  if  censured  or  con- 
demned, be  rightly  censured  or  condemned  in  the  opinion  of 
all ;  for  his  error  would  necessarily  be  committed  within  that 
sphere  of  discretion  which  is  properly  reserved  to  him. 

12.  I  think  it  right  to  add  that  I  do  not  anticipate  much 
difficulty  in  finding  a  competent  English  barrister  for  the 
office  at  a  not  extravagant  salary.  Few  legal  appointments 
in  India  would  probably  be  pleasanter  than  that  of  Judge 
Advocate  General  at  head-quarters.  The  duties,  though  no 
doubt  they  would  afford  ample  occupation,  would  hardly  be 
difficult  or  troublesome  to  a  barrister  accustomed  to  English 
practice.  Apart  from  the  law  of  evidence,^  the  law  which 
the  Judge  Advocate  General  has  to  apply  is  mostly  contained 

'  As  regards  European  courts-  by  44  &  45  Vic.  c.  58,  ss.  127,  128, 
martial  held  in  India,  the  law  of  evi-  declared  the  Indian  Evidence  Act,  I.  of 
dence  is  uncodified.   Parliament  having       1872,  inapplicable  to  such  courts. 

A  A 


354  MINUTES 

in  statutes  and  lies  within  comparatively  narrow  limits.  As 
to  evidence,  knowledge  of  it  and  skill  in  appreciating  and 
manipulating  it  are  probably  more  widely  diffused  among 
the  English  Bar  than  any  other  legal  accomplishment.  I 
have  no  doubt  that  there  would  be  many  well-qualified  candi- 
dates for  the  appointment.  It  seems  to  me,  however,  essential 
that  part  of  the  remuneration  should  consist  in  a  retiring 
pension,  to  be  earned  after  service  of  a  certain  number  of 
years. 

13.  The  opinion  of  His  Royal  Highness  the  Duke  of 
Cambridge  that  the  Civil  Judge  Advocate  General  should  be 
assisted  by  a  Military  Judge  Advocate,  has  in  its  favour,  be- 
sides other  arguments,  the  consideration  that  the  department 
would  embrace  a  functionary  who  could  officiate  for  the  Judge 
Advocate  General  during  unavoidable  absence  on  furlough  or 
through  sickness.  The  difficulty  of  obtaining  barristers  to 
officiate  in  temporary  appointments  is  daily  becoming  more 
formidable  in  India. 

DECENTRALISATION  OF  FINANCE 
September  13,  1867. 

I  MUST  apologise  to  the  Viceroy  and  my  honourable  col- 
leagues for  taking  precedence  of  them  in  recording  my  opinion 
on  the  financial  changes  proposed  by  Colonel  Strachey  under 
the  authority  of  the  Financial  Member.  My  excuse  must  be 
that  I  leave  India  in  a  few  days,  and  shall  lose,  for  a  time  at 
all  events,  the  power  of  giving  my  adhesion  to  a  proposal  in 
which  I  take  great  interest,  and  which  I  believe  to  be  of 
signal  importance.  The  few  words  I  have  to  write  will  be 
confined  to  the  principle  and  general  character  of  the  plan  ; 
all  discussion  of  detail  had  better,  in  my  judgment,  be  post- 
poned till  the  opinions  of  the  Local  Governments  have  been 
received. 

I  do  not  think  that  anybody  can  have  observed  the  recent 
working  of  our  system  of  financial  control  without  coming  to 
the  conclusion  that,  if  it  be  not  on  the  point  of  an  inevitable 
collapse,  it  is,  at  all  events,  in  great  danger  of  going  to  pieces, 
unless  the  strain  be  lightened  somewhere.     The  rules  imposed 


DECENTRALISATION    OF    FINANCE  355 

on  the  Local  Governments  depend  for  their  force,  like  all  laws, 
on  the  efficacy  of  the  penalty  which  they  threaten  in  the 
event  of  disobedience.  The  penalty  is,  in  the  present  case,  a 
reproof  from  the  Government  of  India.  But  if  any  Local 
Government  has  become— what  any  Local  Government  might 
become  at  any  day — entirely  callous  to  the  rebukes  of  the 
Government  of  India,  through  discovering — what  any  Local 
Government  may  at  any  time  discover — that  these  rebukes 
lead  to  no  ulterior  consequences,  what  impediment  remains  to 
the  employment  of  one  or  more  among  the  hundred  expe- 
dients by  which  the  Central  Government  may  be  morally 
compelled  to  condone  infractions  of  its  rules,  and  to  allow  the 
share  of  its  revenues  which  it  has  allotted  to  a  particular 
province  to  be  exceeded  .''  It  is  hardly  matter  of  wonder 
that  Local  Governments  should  learn  this  lesson.  India  is 
now  very  near  England  ;  Indian  affairs  are  much  discussed  in 
public  ;  the  opinions  of  authorities  to  which  this  Government 
is  subordinate  are  frankly  declared  and  widely  disseminated  ; 
and  thus  the  head  of  a  Local  Government  must  be  very  dull 
indeed  who  does  not  gather  that  our  rules  of  financial  control 
are  losing  credit  in  the  very  quarters  in  which,  if  they  are  to 
be  rigidly  enforced,  the  belief  in  their  usefulness  ought  to  be 
strongest. 

It  seems  to  me  very  poor  statesmanship  to  neglect  such 
considerations.  Our  system  may  be  good  or  bad  ;  but,  even 
if  I  believed  it  to  be  more  perfect  than  I  do,  I  should  say  that 
it  was  time  to  alter  it  if  the  means  of  applying  it  in  its 
integrity  were  failing  us. 

But  my  belief  is  that  it  goes  to  undue  lengths  in  what  it 
attempts,  and  miscarries  miserably  to  the  extent  of  the 
excess. 

The  proposal  before  us,  which  appears  to  me  to  be  as 
remarkable  for  its  moderation  as  for  any  other  characteristic, 
is  to  transfer  to  the  Local  Governments  certain  items  of 
charge  and  income  which,  if  the  accounts  of  the  present  year 
be  taken  arbitrarily  as  a  basis,  almost  exactly  balance  one 
another.  The  items  of  charge  transferred  are  those  over 
which,  from  the  nature  of  the  case,  the  Government  of  India 
can    exercise   no  control,  or  next  to    none.     The    items   of 

A  A  2 


356  MINUTES 

revenue  are  those  which  no  action  of  the  Government  of 
India  can  render  more  fruitful.  If  we  now  wish  to  augment 
the  last  or  diminish  the  first,  we  must  work  exclusively 
through  the  Local  Governments 

I  must  maintain  my  opinion  that  the  principle  sought  to 
be  applied  has  been  long  since  recognised,  and  that  the 
practical  effect  of  what  is  proposed  to  be  done  will  be  simply 
to  increase  those  local  funds  on  which  the  Local  Governments 
set  the  greatest  store,  which  they  have  the  strongest  induce- 
ment to  economise,  and  which  nobody  suggests  should  be 
taken  from  them.  I  can  discern  no  test  whatever  of  a  local 
fund,  other  than  a  municipal  fund,  except  that  it  is  wholly 
raised  in  a  particular  province,  and  wholly  expended  in  that 
province  under  the  authority  of  the  Government  of  the 
province.  Its  legislative  origin  counts  for  nothing,  because^ 
in  fact,  there  are  many  sources  of  Imperial  revenue  which 
were  at  first  of  local  origin,  and  not  a  few  local  imposts  are, 
as  may  be  seen  by  glancing  at  even  recent  enactments,  levied 
under  Imperial  authority.  Now,  the  funds  and  parts  of  funds 
which  Colonel  Strachey  proposes  to  transfer  are  wholly  raised 
within  the  province  ;  when  the  transfer  has  been  effected,  they 
will  be  wholly  expended  in  the  province  under  the  allocation 
of  its  Government.  No  criterion  of  a  local  fund  will,  as  it 
appears  to  me,  be  w^anting. 

A  good  illustration  is  furnished  by  those  cesses  for  local 
purposes,  such  as  education,  which  are  levied  on  land  in 
certain  provinces  of  India.  They  constitute  a  clear  addition 
to  the  land-revenue,  and  to  the  tax-paying  agriculturist  it  is 
indifferent  whether  they  are  reckoned  separately  or  lumped 
in  his  aggregate  payment.  It  appears  to  me  that  the  part  of 
the  land-revenue  which  the  plan  before  us  proposes  to  separate 
from  the  rest  and  to  allot  to  the  Local  Government  for  local 
purposes  is  exactly  in  the  same  position  as  these  cesses.  In 
truth,  the  fraction  deducted  is  partially  to  be  spent  on  pre- 
cisely the  same  objects, — for  instance,  roads.  Call  it  indeed 
a  cess,  and  the  question,  which  is  purely  verbal,  is  ended. 

If  it  be  established  that  these  proposals  do  in  effect  only 
augment  local  funds, — funds,  that  is  to  say,  raised  in  the 
province  for  objects  confined  to  the  province, — it  seems  to  me 


DECENTRALISATION    OF   FINANCE  357 

that  we  may  safely  in  the  end  augment  them  up  to  the 
amount  of  the  English  county  expenditure,  compared  with 
which  the  revenue  proposed  to  be  immediately  transferred  is 
quite  trivial.  All  the  reasons  which  make  in  favour  of  our 
retaining  so  large  a  proportion  of  the  revenues  of  India  in 
our  hands  seem  to  me  to  be  arguments  for  placing  the 
English  county  expenditure  under  the  direct  control  of  the 
House  of  Commons.  Indeed,  the  latter  class  of  arguments 
are  rather  the  stronger,  since  it  may  be  said  that  the  payers 
of  county  rates  are  much  more  truly  represented  in  Parliament 
than  among  the  authorities  which  levy  and  disburse  those 
rates.  If,  however,  an  attempt  were  made  to  give  effect  to 
such  arguments,  the  reply  would  be  that  the  Treasury  and  the 
House  of  Commons  have  quite  enough  to  do  already,  and 
that  local  watchfulness,  even  by  a  defectively  organised  body, 
is  always  more  effectual  than  central  control  exercised  under 
the  disadvantages  which  are  inherent  in  such  control.  I  am 
unable  to  see  why  the  force  of  this  reply  is  wholly  spent  in 
India. 

The  argument  derived  from  the  alleged  extravagance  of 
the  Local  Government  seems  to  me  to  be  pushed  a  good  deal 
too  far  ;  but  admitting  within  limits  the  fact  of  such  ten- 
dency to  extravagance,  I  regard  it  as  the  natural  fruit  of  the 
present  system.  I  suppose  that  it  will  be  conceded  that  both 
men  and  Governments  discharge  a  clear  duty  better  and  more 
completely  than  a  remote,  obscure,  or  contingent  duty.  Now, 
the  clear  and  primary  duty  of  a  Governor  or  Lieutenant 
Governor  is  to  promote  the  moral  and  material  prosperity  of 
,the  population  under  his  government.  On  the  other  hand, 
the  duty  which  the  Government  of  India  has  imposed  on 
itself,  and  which  no  doubt  it  conscientiously  tries  to  discharge, 
is  to  regulate  the  expenditure  on  the  objects  sought  to  be 
promoted  by  the  Local  Governments  on  principles  determined 
by  the  financial  necessities  and  the  financial  condition  of  the 
Empire  as  a  whole.  No  doubt  it  is  the  duty  of  the  Local 
Government  to  observe  the  limitations  imposed  on  its  legiti- 
mate ambition  by  the  Government  of  India  ;  but  this  is  a 
duty  of  a  very  different  and  much  more  indistinct  kind  than 
that  of  doing  palpable  good  to  a  subject  population.     For  my 


358  MINUTES 

part,  I  do  not  greatly  wonder  that  a  Local  Government  should 
try  to  get  all  that  is  to  be  got,  and  should  not  be  very  scrupu- 
lous in  its  contrivances  for  getting  it. 

I  imagine  myself  to  have  only  put  into  other  words  what 
Colonel  Strachey  means  when  he  says  that  Local  Govern- 
ments have  as  yet  to  acquire  the  sense  of  financial  responsi- 
bility. How  that  sense  is  to  be  created,  except  by  some  such 
plan  as  is  before  us,  I  cannot  see,  and  have  never  heard 
explained. 

It  seems  to  me  too  hastily  assumed  that  the  nearly 
exclusive  control  now  enjoyed  over  the  finances  by  the 
Government  of  India  results  necessarily  and  inevitably  in 
economy.  For  the  Government  of  India,  as  at  present  con- 
stituted, it  may,  I  think,  be  fairly  claimed  that,  while  it  is 
free  from  the  bias  of  local  interests,  it  has  no  special  tendency 
to  extravagance  peculiar  to  itself.  But  the  truth  is  perpetu- 
ally before  us  that  the  Indian  Government,  in  all  its  parts,  is. 
one  of  the  most  ephemeral  in  the  world.  Five,  ten,  or  fifteen 
years  hence  we  may  have  a  Governor  General  with  special 
crotchets— let  us  say  military  crotchets — which,  falling  in,  it 
may  be,  with  popular  fancies,  may  lead  him  into  expenditure 
transcending  the  most  wanton  extravagance  of  all  the  Local 
Governments  together,  and  for  which,  moreover,  there  would 
be  nothing  to  show  when  it  was  over. 

I  see  positive  advantage  in  curtailing  to  some  extent  the 
proportion  of  the  revenues  of  India  at  the  absolute  disposal 
of  the  Central  Government,  and  in  finally  appropriating  a 
considerable  part  of  those  revenues  to  the  needs  of  Local 
Governments.  I  can  quite  conceive  a  campaign  on  the  Oxus 
or  the  Jaxartes  being  undertaken  with  less  precipitation  if  the 
Supreme  Government  had  lost  the  power  of  summarily  stop- 
ping all  public  works  throughout  India,  and  could  only  pay 
for  military  glory  by  borrowing  or  taxation.  If  the  Indian 
public  debt  be  analysed,  I  venture  to  say  that,  putting  aside 
the  results  of  the  events  of  1857,  it  will  be  found  to  have 
been  mainly  incurred  through  Imperial,  and  not  through 
local,  extravagance. 

Mr.  Maine  was  seldom  called  upon  to  consider  questions  of  finance. 
The  following  extract  from  a  minute  on  a  proposed  reduction  of  the 


THE   SALT   DUTIES  359 

salt  duties,  shows  how  he  dealt  with  such  of  these  questions  as  came 
before  him. 

Turning  again  to  Mr.  Strachey's  proposals,  I  do  not 
understand  that  either  he  or  Sir  W.  Mansfield,  who  agrees 
with  him,  expects  in  point  of  fact  that  any  present  perceptible 
relief  will  be  given  to  the  consumer.  It  is  the  '  inauguration  ' 
of  a  new  salt  policy  which  they  desire.  They  wish,  if  I  am 
not  mistaken,  to  commit  the  Government  by  a  decided  step 
to  a  reduction  of  the  salt  duties  and  to  an  extension  of  direct 
taxation.  I  perfectly  understand  all  that  is  generous  in  this 
programme,  and  I  do  not  for  a  moment  quarrel  with  it  because 
it  may  be  called  '  sentimental.'  But,  with  genuine  deference 
to  gentlemen  whose  studies  have  lain  in  this  direction  so 
much  more  than  my  own,  I  doubt  whether  the  plan  which 
commends  itself  to  them  can  be  justified  on  financial  prin- 
ciples. I  can  hardly  be  wrong  in  saying  that,  if  taxation  be 
reduced  with  a  view  to  give  relief  to  a  particular  class,  the 
relief  should  be  a  real  relief  flowing  under  the  operation  of 
economical  laws  from  the  measure  of  reduction.  Still  more 
strongly  do  I  think  that  no  class  should  be  asked  to  submit 
to  additional  taxation  unless  a  clear  material  advantage  is 
conferred  either  on  itself  or  on  some  other  class  which  has 
an  equitable  claim  to  be  relieved  at  its  expense.  It  is  surely 
without  precedent  that  a  Minister  of  Finance  should  propose 
to  increase  or  reduce  taxation  without  tangible  prospect  of  a 
particular  result,  solely  b\'  way  of  a  moral  guarantee  that  he 
or  his  successor  will  hereafter  add  to  or  diminish  the  public 
burdens  at  a  time  when  that  result  is  attainable. 

The  question  is  one  upon  which  I  give  my  opinion  with 
hesitation,  but,  upon  the  information  before  us,  I  think  that 
further  inquiry  should  be  made  as  to  the  incidence  of  the  salt 
duties  in  Lower  Bengal,  and  that,  all  possible  speed  being 
made  with  the  works  required  for  an  augmentation  of  supply 
in  Upper  India,  the  reduction  of  duty  should  be  postponed 
till  those  works  approach  completion,  when — and  when  only, 
as  it  seems  to  me — the  reduced  duties  can  have  fair  play. 

Mr.  Strachey  has  referred  to  the  conclusion  drawn  by 
me  from  the  fact  stated  on  high  authority  that  salt  was  not 
usually  paid  for,  but  given  by  the  dealer  ostensibly  for  nothing 


360  MINUTES 

along  with  the  grain  purchased.  Mr.  Strachey  argues  that 
this  proves  nothing  more  than  the  inabihty  of  the  people  to 
buy  more  than  the  smallest  quantities  of  salt.  He  may  be 
right,  but  the  fact  was  certainly  adduced  in  Council,  as  ex- 
plaining why  it  is  that  the  pressure  of  the  salt  duties  is  not 
consciously  felt  or  complained  of  by  the  people. 


DRAFT  OF  DESPATCH  RESULTING  IN 
STAT.    33^  VIC.    C.    3 

January  10,  1868. 

To  Her  Majesty's  Secretary  of  State  for  India.— 
My  Lord  Duke, — With  reference  to  the  fifth  paragraph  of 
your  predecessor's  despatch.  No.  182,  dated  November  30  last, 
in  which  Sir  Stafford  Northcote  observes  that  he  does  not 
trace  the  effects  of  over-refined  legislation  in  the  Agror  out- 
break, but  rather  the  results  of  certain  incautious  executive 
measures,  we  have  the  honour  to  state  that  we  entirely  concur 
in  this  view.  We  had  no  intention  of  implying  in  our  despatch 
of  September  2,  1868,  that  'unsuitable  laws  and  regulations' 
had  any  share  in  producing  the  disaffection  of  Atta  Muhammad 
Khan  or  the  inroad  of  the  border  tribes.  We  will  proceed  to 
explain  more  fully  the  course  of  our  reasoning,  which,  in  our 
former  despatch,  was  briefly  indicated  by  a  reference  to  the 
abusive  exercise  by  Atta  Muhammad  Khan  of  certain  powers 
confided  to  him  by  the  Government  of  the  Panjab. 

We  have  to  point  out  to  Your  Grace  that  on  the  annexa- 
tion of  a  new  territory  to  British  India  many  difficulties  arise 
as  to  the  status  of  its  population  which  are  of  a  legal  charac- 
ter, but  which,  however  unfortunate  it  may  seem,  must  never- 
theless be  dealt  with  under  our  present  system  of  government 
and  administration.  The  new  territory  becomes  part  of  Her 
Majesty's  Indian  dominions,  its  inhabitants  become  Her 
Majesty's  subjects,  the  Council  of  the  Governor  General  for 
making  Laws  and  Regulations  becomes  the  sole  authority 
which  can  legislate  for  it,  and,  unless  it  be  specially  excepted, 
all  general  enactments  apply  to  it. 

Practically,  however,  it  is  found  necessary  to  leave  such 
territories   for  awhile  under  a  system  bearing  more  or   less 


LEGISLATION    FOR   WILD   TERRITORIES  361 

analogy  to  that  which  prevailed  in  them  before  the  conquest. 
As  in  the  case  of  Atta  Muhammad  Khan,  certain  of  the  chiefs 
are  left  in  the  enjoyment  of  quasi-patriarchal  power,  or  the 
Executive  Government  affects  to  confer  such  power  upon 
them  and  to  limit  it  when  once  conferred.  It  must  be  obvious, 
we  think,  that  the  authority  to  sanction  or  confer  these  sub- 
ordinate jurisdictions  (which,  however,  are  well  adapted  to 
the  people)  is  from  a  strictly  legal  point  of  view  extremely 
doubtful.  The  natives  of  the  territory  retain,  no  doubt,  their 
own  customs  and  laws  until  they  are  altered  by  legislation  ; 
but  it  seems  to  us  impossible  to  hold  that  persons  who  exer- 
cised power  or  jurisdiction  over  others  under  the  former 
Government  retain  the  same  power  and  jurisdiction  when  they 
become  the  Queen's  subjects  ;  and,  even  if  that  were  so,  it 
would  not  be  open  to  a  Local  Executive  Government,  like 
that  of  the  Panjab,  to  confer  any  new  authority  of  the  kind 
or  to  limit  such  authority  if  it  existed,  except  so  far  as  its 
orders  previous  to  1861  have  been  continued  by  the  Indian 
Councils  Act. 

This  class  of  difficulties  has  been  surmounted  or  evaded 
in  much  of  India  by  the  management  of  these  new  and  wild 
countries  in  the  Political  Department,  a  system  which  appears 
to  rest  on  the  assumption  that  they  have  not  altogether,  or  for 
all  purposes,  been  incorporated  with  the  Queen's  dominions. 
We  apprehend,  however,  that  the  Hazara  district  and  the 
Trans-Indus  territory  have  ever  since  the  conquest  been  con- 
sidered an  integral  part  of  the  Panjab,  and  that  certain  of  our 
legislative  enactments  are  in  force  there — a  fact  wholly  incon- 
sistent with  their  being  in  any  sense  foreign  territory.  Con- 
sidering, then,  the  difficulty  which  (as  appears  from  our 
despatch  addressed  to  Your  Grace's  predecessor  on  the 
Keaeghat  case)  attends  our  replacing  or  placing  for  the  first 
time  under  the  Political  Department  territory  which  has  once 
been  incorporated  with  Her  Majesty's  dominions,  we  think  it 
very  desirable  that  a  system  of  administration  by  which  a 
certain  degree  of  independence  should,  under  proper  control, 
be  left  to  chiefs  and  men  of  influence  in  these  countries 
should  receive  the  sanction  of  legislative  authority.  The  mere 
abstinence  from  legislation  would,  as  Your  Grace  will  easily 


362  MINUTES 

perceive,  not  only  not  meet  the  case,  but  would  aggravate  the 
embarrassments  to  which  we  have  adverted.  But  it  is  for  this 
description  of  legislation  that  we  do  not  consider  our  present 
legislative  machinery  well  adapted.  The  first  steps  towards 
such  a  system  must  be  tentative  and  capable  of  being  easily 
retraced  and  varied.  A  simpler  mode  of  exercising  legislative 
power  than  that  provided  by  the  Indian  Councils  Act  would 
seem  desirable  for  the  purpose  of  legalising  such  experiments  ; 
and,  in  fact,  the  legislative  machinery  which  we  prefer  for  these 
wild  territories,  and  which  we  recommended  to  Sir  Stafford 
Northcote,  would  differ  only  from  the  executive  machinery 
now  applied  by  the  Panjab  Government  in  its  securing  a 
greater  degree  of  caution  and  deliberation  for  all  measures 
that  might  be  adopted  towards  the  chiefs  and  people. 

33  Vic.  c.  3,  s.  I,  accordingly  empowers  the  Local  Government 
to  propose  to  the  Governor  General  in  Council  drafts  of  regulations 
for  any  place  to  which  the  Secretary  of  State  for  India  in  Council  has 
declared  that  section  applicable.  Sec.  2  directs  the  Governor  General 
in  Council  to  take  the  draft  into  consideration.  [This  means,  in  prac- 
tice, that  it  is  drawn  or  recast  in  the  Legislative  Department.]  When 
the  draft  has  been  approved  by  the  Governor  General  in  Council  and 
received  the  Governor  General's  assent,  it  is  published  in  the  gazettes, 
and  thereupon  has  the  force  of  law.  Under  this  useful  statute  a 
large  number  of  regulations  have  been  made  for  the  wilder  parts  of 
Bengal,  Bombay,  the  North- West  Provinces,  the  Panjab,  and  Burma, 
and  for  Coorg,  Ajmer  and  Merwara,  Assam,  the  Andaman  and  Nicobar 
Islands,  and  British  Baluchistan. 


THE  BENGAL  LEGISLATURE 

February  27,  1868. 

My  opinion  on  many  of  the  questions  put  to  us  by  the 
Secretary  of  State  will  necessarily  possess  much  less  value 
than  the  opinions  of  those  of  my  colleagues  who  have  had  a 
larger  experience  of  India.  I  have,  however,  been  nearly  six 
years  in  charge  of  the  Legislative  Department  of  the  Govern- 
ment of  India,  and  I  may,  therefore,  venture  to  claim  some 
decree  of  attention  for  the  conclusions  I  have  come  to  on  the 
points  raised  by  Sir  Stafford  Northcote  in  his  i6th  and  19th 


THE    BENGAL   LEGISLATURE  363 

paragraphs,  which  relate  to  suggested  changes  in  the  machi- 
nery of  legislation. 

I  am  strongly  in  favour  of  restoring  to  the  Executive? 
Government  that  power  of  legislating  for  the  less  advancedC 
portions  of  the  country  which  it  once  possessed  in  fact.  IL) 
might,  perhaps,  be  enough  to  point  out  that,  if  there  had  not 
been  a  general  belief  in  the  existence  of  that  power,  there 
would  almost  certainly  have  never  been  a  formal  legislature 
in  India.  Lord  Dalhousie,  when  he  pressed  for  the  establish- 
ment of  the  first  Legislative  Council,  unquestionably  believed 
that  his  Government  possessed  the  same  legislative  authority 
over  non-regulation  territory  which  the  Crown  exercises  over 
Crown  Colonies  up  to  the  moment  of  according  to  them 
distinct  legislative  institutions.  The  legal  correctness  of  the 
doctrine  on  which  this  claim  to  legislate  '  executively '  rested 
was,  indeed,  strongly  denied  by  my  predecessor  in  office,  Sir 
Barnes  Peacock  ;  but,  in  practice,  the  Government  continued 
till  1 86 1  to  act  as  if  it  possessed  the  power  in  respect  of  all 
the  outlying  and  newly-annexed  provinces.  At  length,  how- 
ever, the  Indian  Councils  Act  of  1861,  according  to  the 
better  construction  of  its  language,  took  away  from  the 
Executive  Government  all  legislative  authority  over  non- 
regulation  territory,  at  the  same  time  that  it  gave  the  force 
of  law  to  all  the  rules  which  had  been  made  in  the  belief  that 
the  authority  existed.  The  intention  of  the  statute  of  1861 
seems  to  be  that  local  Councils  shall  gradually  be  established 
in  all  the  provinces  of  India.  As  a  matter  of  fact,  however,  it 
has  not  yet  been  found  possible  to  establish  a  local  legislature 
even  in  a  part  of  the  country  so  long  settled  and  so  well 
understood  as  the  North-Western  Provinces  ;  '  and  the  result 
is  that  no  new  law  or  rule  which  is  required  for  any  province 
other  than  Madras,  Bombay,  and  Bengal  Proper,  can  be  sanc- 
tioned by  any  authority  in  India  other  than  the  Supreme 
Legislative  Council,  sitting  usually  for  three  or  four  months 
in  the  year,  and  almost  exclusively  at  Calcutta. 

The  absolute  denial  of  legislative  power  to  the  Executive 
Government,  as  it  affects  the  wilder  and  less  civilised  portions 
of  India,  is  most  inconvenient,  and,  I  venture  to  think,  most 

'  This  measure  has  since  been  taken. 


364  MINUTES 

dangerous  ;  for  it  comes  to  this,  that  the  Executive  Govern- 
ment can  do  no  act  unless  there  is  a  known  rule  to  back  it. 
This  might  be  all  very  well  if  India  was — what  China  was 
'  A .  mnce  supposed   to  be — a  country  in  which  there  was  a  rule 
|^      ^for  every  possible  contingency.     But  the  government  of  jlie 
'       ^country  is  an  experiment  conducted  under  perpetually  chang- 
ing  conditions.     Those  who  know  most  of  the  people  in  the 
outlying  provinces  probably  know  but  little  of  them  ;  mistakes 
'are  constantly  discovered  which  ought  at  once  to  be  corrected  ; 
I  peculiarities  of  character  and  feeling  unknown  before  have 
[suddenly  to  be  allowed  for  ;  and  new  circumstances  arise  to 
which    measures    must   be    moulded.     As  matters    stand  at 
present,  the  Government  can  do  nothing  without  coming  to 
Calcutta  for  a  formal  law,  the  reasons  for  which  it  is  often  not 
easy,  and  occasionally  not  safe,  to  assign.     Moreover,  the  law 
in  question  has  to  be  asked  from  a  Council  which  is  not  really 
responsible  for  the  peace  and  good  government  of  the  terri- 
tories to  be  legislated  for.     No  doubt  in  practice  the  Legis- 
lature shows  great  good  sense  by  accepting  these  laws  from 
the  local  functionaries  without  questioning  them.     Still,  it  is 
just  possible  that  a  law  imperatively  required  for  the  safety  of 
the  Trans-Indus  Frontier  or  the  peace  of  the  wild  country  in 
the   Central    Provinces  might  be  refused  ;    and,   if  so,  what 
responsibility  could  be  fixed   on   the  members  of  the  Civil 
Service  from  Madras,  Bombay,  or  Bengal  Proper,  or  on  the 
gentlemen  belonging  to  the  Calcutta  mercantile  community 
who  sit  in  the  Council  ?     Yet,  public    opinion    in    England 
exacts  from  the  Executive  Government  of  India  the  responsi- 
bilities of  a  despotism — even  over  the  more  settled  provinces 
to  a  much  greater  extent  than  is  commonly  believed  here — 
over  the  wilder  provinces  absolutely. 

Nor  must  it  be  left  out  of  account  that  the  public  debates 
in  the  Council,  which,  in  my  judgment,  have  an  excellent 
effect  (so  far  as  they  go)  on  the  civilised  and  settled  provinces, 
might  do  us  great  injury  in  the  rest  of  India,  to  which  they 
are  sure  to  penetrate,  if  they  do  penetrate,  in  a  distorted  and 
falsified  shape. 

To  the  other  question  asked  by  the  Secretary  of  State — 
Shall   the  local    Bengal    Legislature   be   abolished,   and   its 


THE   BENGAL   LEGISLATURE  365 

functions  transferred  to  the  Supreme  Council  ? — I  am  com- 
pelled to  give  a  very  decided  answer  in  the  negative.  I 
greatly  regret  that  on  this  point  I  am  at  issue  with  His  Ex- 
cellency the  Viceroy. 

His  Excellency  has  remarked  that  the  Bengal  Legislative 
Council  does  not  possess  the  same  weight  as  the  other  local 
legislatures.  I  certainly  have  observed  that  there  has  been 
in  some  quarters  much  disparagement  of  the  Bengal  Council  ;, 
but  I  strongly  suspect  that,  if  we  knew  more  of  the  Madras 
and  Bombay  Legislatures,  we  should  find  them  not  less 
roughly  treated  by  the  local  press.  There  is  one  additional 
reason  for  not  giving  any  extraordinary  weight  to  these  ad- 
verse criticisms.  Their  authors  are  obviously,  and  no  doubt 
honestly,  desirous  of  chaining  the  Government  of  India  to 
Calcutta,  and  no  more  promising  expedient  could  be  devised 
for  this  object  than  compelling  the  Supreme  Council  to  under- 
take the  whole  local  legislation  of  Bengal  Proper.  I  quite 
understand,  at  the  same  time,  that  the  Viceroy  has  very  dif- 
ferent objects  in  view  when  he  proposes  the  suppression  of 
the  Local  Council,  and  it  is  curious  to  reflect  how  very  little 
pleasure  it  would  give  to  the  assailants  of  the  Bengal  Council 
to  be  taken  at  their  word  in  the  sense  in  which  His  Excel- 
lency would  take  them. 

Looking  simply  at  the  proposal  to  suppress  the  Local 
Council  and  transfer  its  duties  to  the  Supreme  Council,  I  am 
opposed  to  it  on  a  variety  of  grounds.  Speaking  from  my 
own  observation,  I  think  the  Bengal  Legislature  does  all  its 
work  reasonably  well,  and  a  good  deal  exceedingly  well. 
And,  whether  it  does  it  ill  or  well,  I  am  quite  sure  that  the 
Supreme  Legislature  would  do  it  a  great  deal  worse.  It  is, 
indeed,  possible  that  the  Local  Council  sometimes  addresses 
itself  to  subjects  which  could  be  better  disposed  of  by  the 
Governor  General's  Council.  But,  if  that  be  so,  the  fault  is 
attributable  to  the  Supreme  Government  and  the  Supreme 
Legislature,  since  the  Supreme  Council  can  take  any  subject 
it  pleases  out  of  the  hands  of  the  Bengal  Council  and  can 
supersede  or  repeal  its  legislation. 

The  effect  of  the  transfer  of  the  Bengal  business  to  the 
Supreme  Council  would  be,  as  far  as  I  can  see,  to  break  it 


366  MINUTES 

down  altogether.  In  my  humble  judgment,  we  have  already 
too  much  in  the  Supreme  Legislature  of  what  I  hope  I  may 
call  without  disrespect  the  '  parish  vestry '  business  of  the 
North-West,  the  Panjab,  and  the  Chief  Commissionerships. 
There  is  before  us  at  the  present  moment  the  most  important 
law  which  it  has  ever  been  proposed  to  apply  to  India,  not 
even  excepting  the  Penal  Code.  The  Indian  Contract  Bill, 
which  the  Indian  Law  Commissioners  have  prepared,  and 
which  we  hope  to  apply  to  all  classes  in  India,^  will  affect  the 
every-day  transactions  of  one  of  the  most  industrious  popula- 
tions in  the  world,  and  most  thoroughly  imbued  with  the 
commercial  spirit.  It  would  not  be  too  much  to  say  that,  if 
the  select  committee  on  this  Bill  met  during  every  working 
hour  of  the  week,  it  would  not  be  time  wasted  ;  yet  I  have 
not  been  able  to  allot  to  this  committee  more  than  one  after- 
noon a  week,  merely  because  we  are  busy  in  discussing  such 
questions  as  what  is  the  best  way  in  which  Municipal  Com- 
mittees in  the  North-West  can  abate  petty  nuisances,  and 
under  what  restrictions  they  shall  be  allowed  to  borrow 
money  for  the  digging  of  tanks.  The  legislation  of  the 
Bengal  Council  would  be  a  crushing  addition  to  our  work. 
It  must  always  be  very  heavy,  for  Bengal  Proper  is  a  law- 
abiding  province  ;  and  it  must  also  be  very  minute,  since  it 
will  have  to  govern  the  concerns  of  a  population  with  a  very 
decided  turn  for  law,  and  since  it  will  be  exposed  to  exami- 
nation by  dignified  courts  composed  of  subtle  and  wary  lawyers. 
I  object  further  to  the  proposal  because  it  will  entail  a 
very  unsatisfactory  change  in  the  composition  of  the  Supreme 
Council.  Nothing,  to  my  mind,  can  be  plainer  than  the  prin- 
ciples on  which  that  Council  should  now  be  constituted.  We 
require  gentlemen  who  can  explain  the  practical  difficulties 
which  attend  the  application  of  laws  to  parts  of  India  in 
regard  to  which  European  experience  or  received  European 
principles  play  us  false.  We  require  to  know  what  view  of  a 
tax  will  be  taken  by  a  half  reclaimed  Pathan  marauder  on 
the  other  side  of  the  Indus  ;  what  will  be  the  effect  on  Mar- 
wari  traders  in  Guzerat  of  a  change  in  the  law  of  negotiable 
instruments ;    what   difficulties  will  arise    from  altering  the 

'  This  has  been  done  by  Act  IX.  of  1872. 


THE   BENGAL   LEGISLATURE  367 

received  rule  of  '  market  overt '  among  the  cattle-stealing 
populations  on  the  border  of  the  Native  States.  We  need 
the  aid  of  authorities  on  the  intricate  land-revenue  law  of  the 
temporarily-settled  provinces,  on  the  heterogeneous  land- 
tenures  of  the  Panjab  and  North-West,  and  on  the  multitu- 
dinous family  and  clan  customs  characteristic  of  all  North- 
Western  India.  But  if  we  undertake  to  legislate  for  all 
Bengal  Proper,  we  must,  in  justice  to  that  wealthy  and  civil- 
ised province,  half  fill  the  Council  with  Bengal  civilians  and 
educated  Bengal  Natives — classes  both  so  leavened  with 
European  ideas  that  they  will  be  of  little  or  no  use  in  helping 
us  to  ascertain  the  modifications  of  first  principles  which  are 
the  conditions  of  their  application  to  India  as  a  whole. 
Speaking  from  my  own  experience,  I  should  say  there  would 
be  no  more  dangerous  ingredient  in  the  Council  than  a  large 
number  of  educated  Bengdli  Natives.  Nobody  charged  with 
the  conduct  of  the  Legislative  Department  will  ever  fail  to  bel 
inundated  with  their  proposals  for  legislative  innovation  ;  and,) 
if  those  proposals  are  serious,  all  I  can  say  is  that  there  are) 
many  of  them  which  Bentham  himself  would  have  thought^ 
premature. 

Conversely,  I  think,  Bengal  will  suffer  from  not  having 
liberty  to  discuss  and  enact  a  certain  class  of  measures  in  an 
assembly  composed  of  Native  and  European  gentlemen  ex- 
clusively familiar  with  the  province  and  the  people.  The 
province  stands  by  itself,  in  respect  of  the  character  of  the 
Native  population,  the  large  admixture  of  Europeans,  the 
peculiar  nature  of  the  revenue  settlement,  and  the  absence  of 
institutions  which  are  the  basis  of  society  in  other  parts  of 
India.  Many  things  are  practicable  in  Bengal  Proper._and 
many  things  are  desirable  which  are  not  practicable  or 
desirable  elsewhere.  I  do  not  see  why  the  moral  and  material 
progress  of  Bengal  should  be  impeded  by  the  doubts  of 
gentlemen  intimately  acquainted  only  with  the  less  intellec- 
tual and  less  supple  populations  of  Upper  India. 

So  far  from  compelling  the  Supreme  Council  to  under- 
take more  local  legislation,  I  would  gladly  see  its  functions 
narrowed  in  the  main  to  the  consideration  of  financial  mea- 
sures and  of  the  portions  of  the  Code  successively  sent  out  to 


368  MINUTES 

US  by  the  Indian  Law  Commissioners.  I  am  sure  that  all  the 
time  economised  through  the  diminution  of  local  legislation 
would  be  well  expended  on  the  measures  I  have  mentioned. 
Wherever  the  power  of  summary  legislation  cannot  be  rea- 
sonably exercised,  I  would  establish  a  small  Local  Council, 
only  avoiding  the  mistake  into  which  the  present  local  legis- 
latures seem  to  me  to  have  fallen  of  having  regular  and 
periodical  sessions.  I  entirely  agree  with  Sir  W.  Muir  that 
the  North- West  is  entitled  to  a  Local  Council  ;  but  it  should 
only  meet  when  legislation  is  actually  wanted,  and  should  not 
always  sit  with  open  doors. 

The  Viceroy,  in  advocating  the  abolition  of  the  Bengal 
Council,  contemplates  further  changes  which  would,  to  a 
certain  extent,  obviate  the  objections  I  have  taken.  He 
would  '  grant  the  power  of  summary  legislation  for  the  whole 
of  the  Bengal  Presidency  and  its  dependencies.'  And  he 
would,  no  doubt,  say  that  a  great  deal  of  legislation  would  be 
got  through  under  the  summary  power,  so  that  no  great  addi- 
tional labour  would  be  thrown  on  the  Supreme  Council. 

His  Excellency  will  pardon  my  arguing  that,  so  far  as 
regards  Bengal  Proper,  the  change  he  proposes,  which  is  cer- 
tainly very  serious,  is  also  of  very  doubtful  expediency. 
Nobody  with  the  least  self-respect  would  care  to  echo  those 
assertions  of  the  inherent  rights  of  Englishmen  which  are 
sometimes  current  here.  Yet,  in  settling  the  legislative 
mechanism  fittest  for  this  province,  we  cannot  quite  put  aside 
the  fact  that  the  powerful  class  consists  of  Europeans,  and  of 
educated  Natives,  who,  when  their  interests  allow  it,  write,  talk, 
and  think  as  much  like  Europeans  as  they  can.  We  cannot 
give  this  class  representative  institutions  ;  but  it  is  a  very 
serious  matter  to  withdraw  from  them  a  formal  legislature 
when  they  have  once  had  it,  and  to  subject  them  to  that  con- 
crete form  of  despotism  which  consists  in  the  complete 
blending  of  executive  and  legislative  power. 

No  doubt  there  would  still  remain  the  Supreme  Council. 
But  it  would  only  be  called  into  action  when  the  Executive 
Government  chose,  and  I  presume  that  it  would  never  have 
measures  submitted  to  it  on  which  the  Government  disliked 
debate,  or  to  which    it  feared   serious  opposition.     Now,  to 


THE   BENGAL   LEGISLATURE  369 

take  the  last  contingency  first,  the  cases  in  which  the  Govern- 
ment could  not  carry  a  measure  either   in   the   Supreme   or 
Local  Council  b}'  putting  forth  its  full  strength  must  always 
be  very  rare,  and,  if  they  did  occur,  I  should  venture  to  think 
that  there  was  a  good  deal   to  be  said  on  the  side  of  the 
opposition  ;    and,  under  any  circumstances,  I  think  it  would 
be  much  better  undisguisedly  to  pack  the  Council  than   to 
dispense  with  its  share  in  legislation.     The  other  advantage 
to  be  gained — the  avoidance    of  public    debate — is,    in    my 
mind,  the  reverse  of  an  advantage  in  the  more  civilised  pro-? 
vinces.     So  far  from  its  being  desirable  that  we  should  legis-? 
late  without  giving  reasons  for  our  legislation  and  withoutC 
meeting  objections  to  it,  it  seems   to  me  that  the  want  of 
power  to  defend  our  measures  is   our  great  weakness.     We 
stand  alone  among  the  Governments  of  the  civilised  world  in 
having  no  means,  except  the  most  indirect,  of  correcting  the 
honest  mistakes  or  exposing  the  wilful  misrepresentations  of 
a  completely  free  press.     It  would  be  unjust  to  sa^^hat  we 
are  always  unfairly  treated  ;  but  the  Governmental  side  of  mojt^ 
of  our  measures  is  seldom  perfectly  brought  out,  and  not  at 
all  when  those  measures  are  unpopular.     Yet  it  is  quite  idle 
to  say  that  the  public  opinion  which  is  thus  arrayed  against 
us  is  of  no  importance    to    us.      It    penetrates    to    England 
through  the  compendia  of  Indian  newspapers  which  circulate 
there,  or  through  the  correspondence   of  the   English  press. 
Languid   as  is  the    interest    of   England    in    India,    English 
opinion  of  public  measures  and  men  in  this  country  is  apt,  on 
the  whole,  to  follow  Indian  opinion,  which  thus  becomes  a 
real  power.     So  far  from  thinking  it  desirable  to  add  to  the 
weakness  of  this  Government  by  placing  it  under  a  tempta- 
tion to  shrink  from  publicity,  I  would  myself  prefer  to  relax 
in  some  degree  the  precautions  taken  in  the  Indian  Councils 
Act  to  prevent  the  Indian  Legislature  from  giving  itself  the 
airs  of  a  parliament,  and  I  should  like  to  see  effect  given  to 
the  proposal  of  one  of  our  colleagues  that   even    executive 
measures  should  be  occasionally  discussed  in  public,  provided 
that  it  were  done  by  the  express  permission  of  the  Governor 
General,  and  only  in  the  Supreme  Council.' 

'  To  some  extent  this  has  been  done  by  the  Indian  Councils  Act,  1892,  sec.  2. 

B  B 


370 


MINUTES 


When  I  say  that  I  am  rather  in  favour  of  multiplying 
the  Local  Councils  than  of  diminishing  their  number,  I  must 
not  be  understood  to  argue  against  a  measure  of  a  very 
different  kind— the  drafting  or  revision  of  all  local  legislation 
in  the  Legislative  Department  of  the  Government  of  India. 
Some  such  expedient  for  securing  technical  uniformity  in 
legislation  seems  to  me  very  desirable,  and  I  hope  shortly  to 
circulate  some  proposals  on  the  subject. 

I  do  not  propose  to  give  any  opinion  on  the  other  ques- 
tions asked  by  the  Secretary  of  State  until  I  have  had  the 
advantage  of  reading  the  minutes  of  those  of  my  colleagues 
who  have  had  an  exclusively  Indian  training.  But  a  fact 
bearing  on  one  of  these  questions  is  conveniently  mentioned 
here,  because  it  has  been  exclusively  brought  home  to  me  by 
my  experience  in  the  Legislative  Department. 

Nobody  who  has  watched  the  changes  which  have  oc- 
curred during  the  last  five  or  six  years  in  the  composition 
of  the  Legislative  Council  can  fail  to  have  been  struck  by  the 
steady  deterioration,  in  point  both  of  social  rank  and  of 
mental  calibre,  of  that  Native  element  from  which  so  much 
was  at  first  expected  and  to  which  so  much  importance  is  still 
attached  at  home.  When  the  existing  Legislature  was  first 
established,  it  included  a  sovereign  prince,  the  first  statesman 
of  the  Native  territories,  and  a  wealthy  gentleman  of  an  histo- 
rical family,  of  much  influence  with  his  countrymen, ^  and  of 
singular  sagacity.  We  have  now  two  Bengali  gentlemen,  of 
whom  one  was  for  many  years  of  his  life  a  Government 
servant,  and  a  zami'ndar  from  the  North- West — all  three  very 
respectable,  but  none  of  any  extraordinary  weight.  The  result 
of  my  experience  during  these  five  or  six  years  is,  that  we  cannot 
get  the  men  we  want,  and  that,  when  we  get  them,  we  cannot 
keep  them,  or  have  the  greatest  difficulty  in  keeping  them. 

His  Excellency  the  Vicero\-  has  the  nominations  to  the 
Council  entirely  in  his  hands,  and  it  is  to  him  that  applica- 
tions for  his  sanction  to  the  depnrture  of  Native  members  are 
addressed.  He  is  aware  how  many  times  and  by  whom  the 
seats  in  Council  have  been  declined,  and  whether  or  not  the 
Native  members  exhibit  anxiety  to  get   away.      I   shall   be 

'  The  Maharaja  of  Patiala,  Raja  Dinkn  Rao,  and  Raja  Deo  Narayan  Singh. 


THE   BENGAL   LEGISLATURE  37 1 

surprised  if  he  has  not  observed  that  there  is  the  utmost 
reluctance  to  corne,  and  the  utmost  hurry  to  depart,  and  if  he 
does  not  attribute  both  to  the  fear  and  detestation  with  which 
the  climate  of  Calcutta  is  regarded  by  all  natives  of  India  not 
born  in  Bengal,  or,  indeed,  in  the  vicinity  of  Calcutta  itself. 
We  have  seen  a  semi-sovereign  chief  reduced  by  these  feelings 
to  such  a  pass  that,  after  two  or  three  days'  stay,  he  slipped 
away  in  the  night,  leaving  a  medical  certificate  behind  him  ; 
and  I  state  the  impression  repeatedly  made  on  myself  when 
I  say  that  the  discomfort  of  those  Native  members  who  do 
remain  is  sometimes  quite  pitiable. 

I  am  expressing  no  opinion  on  the  value  of  the  Native 
element  in  the  Council,  and  no  final  opinion  on  the  question 
of  the  seat  of  Government.  There  are  many  considerations 
which  obviously  make  in  favour  of  keeping  the  Government 
of  India  in  Calcutta  during  at  least  a  part  of  the  year,  and, 
speaking  from  the  point  of  view  of  my  own  duties,  I  attach 
great  importance  to  the  influence  of  the  legal  opinion  of 
Calcutta  on  our  codes,  and  of  its  mercantile  opinion  on  our 
fiscal  and  financial  legislation.  But  if  the  fact  which  I  have 
noted — brought  home  to  me  as  it  has  been  by  certainly  a 
limited,  but  still  a  very  marked  and  peculiar  experience — be 
really  a  fact,  it  seems  altogether  absurd  to  leave  it  out  of 
account  in  arguing  the  question  of  the  future  seat  of  govern- 
ment. It  may  be  proper  or  quite  inevitable  that  Englishmen 
should  sicken  or  die  in  Calcutta,  or  those  again  may  be  right 
in  whom  the  denial  of  its  salubrity  appears  to  excite  a  very 
sincere  indignation.  But  it  is  surely  a  strong  thing  to  assert 
without  hesitation  or  reserve  that  Calcutta  is  the  best  or  the 
only  possible  capital,  if  it  be  true  that  the  vast  majority  of 
those  who  are  to  be  governed  from  it  refuse  to  come  near  it. 
There  is  another  country — Italy — in  which  the  '  question  of 
the  capital '  is  also  the  question  of  the  day.  The  difference 
between  the  two  cases  is  that  Rome  has  a  history,  and  the 
Italians  beyond  all  doubt  wish  to  go  there,  whereas  it  is  really 
difficult  to  say  that  Calcutta  was  ever  the  theatre  of  any 
occurrence  more  considerable  than  the  tragedy  of  the  Black 
Hole,  and  the  Natives  of  India  appear  to  be  desirous  of  keep- 
ing as  far  away  from  it  as  they  can. 

B  B  2 


372  MINUTES 

GOVERNMENT  OF  BENGAL:    SIMLA:     CALCUTTA 
March  i6,  1868. 

My  observations  as  to  the  constitution  fittest  for  the  local 
government  of  Bengal  must  necessarily  be  of  a  somewhat 
general  character,  and  will,  therefore,  contrast  disadvan- 
tageously,  perhaps,  with  the  opinions  of  gentlemen  who  speak 
from  personal  knowledge  of  the  details  of  administration. 

I  must  confess  that  the  very  strong  case  made  by  the 
present  Lieutenant  Governor  for  placing  Bengal  Proper  under 
a  Governor  in  Council  does  not  seem  to  me  answered  in  the 
minutes  recorded  by  members  of  the  Government  of  India, 
and  I  venture  to  think  that  in  those  minutes  much  too  little 
stress  is  laid  on  the  presumption  against  the  continuance  of 
the  Lieutenant  Governorship  arising  from  the  terrible  cala- 
mity which  occurred  at  the  close  of  the  last  incumbency.' 
That  presumption  is  so  strong  that  I  regard  the  proposal  to 
restore  the  Government  of  Bengal  to  the  Government  of 
India,  or  to  make  the  Lieutenant  Governor  a  member  of  the 
Executive  Council,  as  in  itself  more  logical  than  the  conclu- 
sions of  those  who  would  either  do  nothing  or  carry  out  some 
small  improvements  in  the  Bengal  administrative  system.  I 
perfectly  agree  with  the  Viceroy  and  my  honourable  col- 
leagues in  thinking  that  a  closer  union  between  the  Govern- 
ment of  India  and  the  Government  of  Bengal  would  probably 
end  in  breaking  down  both  Governments,  but  still  there  is  a 
certain  congruity  between  the  magnitude  of  the  proposal  and 
the  greatness  of  the  occasion. 

His  Excellency  the  Viceroy  has,  indeed,  contended  in 
effect  that,  if  the  late  Lieutenant  Governor  had  been  other 
than  he  was,  the  disaster  in  Orissa  would  ha:ve  been  other- 
wise dealt  with.  This  is  probably  true,  but  it  is  also  true 
that  the  appointment  of  Sir  Cecil  Beadon  to  the  Lieu- 
tenant Governorship  of  Bengal  six  years  since  was  perfectly 
inevitable.  As  far  as  I  know,  there  was  no  conceivable  com- 
petitor for  the  office,  and  neither  the  present  Viceroy  nor  any 
other  could  have  made  a  different  selection.  No  one  under 
present  circumstances  need  be  afraid  of  praising  Sir  Cecil 
'  The  famine  in  Orissa,  aggravated  by  the  action  of  the  Calcutta  Board  of  Revenue. 


THE   GOVERNMENT   OF   BENGAL  373 

Beadon,  and,  therefore,  I  will  say  that  I  do  not  happen  to 
have  met  anybody  of  higher  capacity,  versatility,  and  resolu- 
tion. Who  could  have  predicted  that  the  serene  courage 
which  (as  Sir  William  Mansfield,  who  ought  to  know,  tells 
us)  sustained  him  and  others  during  the  mutinies  would 
degenerate  into  unreasonable  reliance  on  the  infallibility  of  a 
subordinate  department  ?  I  am  not  aware  that  there  is  any 
known  contrivance  for  correcting  this  species  of  vicious  bias 
even  in  men  of  strong  character  and  great  ability,  except 
forcing  them  to  place  themselves  in  contact  and  even  in 
collision  with  other  minds,  possibly  of  inferior  calibre.  I 
will  even  say  that,  though  a  Lieutenant  Governor  had  been 
selected  who  would  have  done  more  than  Sir  Cecil  Beadon  to 
mitigate  the  Orissa  calamity,  it  is  more  than  probable,  con- 
sidering the  complex  nature  of  all  Bengal  questions,  that  he 
would  have  fallen  into  formidable  errors  of  another  kind,  and 
would  equally  have  been  the  better  for  a  Council. 

It  is  further  contended  that,  if  Sir  Cecil  Beadon  had  had 
a  Council,  the  Members  of  the  Board  of  Revenue  would  have 
been  his  Council,  and  the  same  results  would  have  followed. 
It  seems  to  me  just  as  likely  that  one  or  more  of  the  gentle- 
men now  on  the  Bench  of  the  High  Court  would  have  been 
in  the  Council  ;  but  even  granting  that  the  very  gentlemen 
who  constituted  the  Board  would  have  been  Sir  Cecil  Beadon's 
councillors,  it  does  not  seem  to  me  at  all  probable  that  their 
common  deliberations  would  have  ended  in  the  same  way  as 
their  correspondence  at  arm's  length.  But  the  facts  and  the 
probabilities  appear  to  point  in  the  other  direction.  So  far 
as  any  one  incident  in  that  sad  history  can  be  marked  out 
from  the  rest  as  the  one  great  source  of  misfortune,  it  was  the 
despatch  of  the  telegram  in  which  the  Board,  speaking  in  the 
name  of  the  '  Government,'  peremptorily  declared  that  no 
grain  should  be  imported.  I  look  upon  it  as  all  but  ^impos- 
sible that,  if  the  Lieutenant  Governor  and  the  Board  had  been 
combined  in  a  corporate  Government,  this  telegram  could 
have  issued  without  the  Lieutenant  Governor's  knowledge  ; 
and  Sir  Cecil  Beadon  has  distinctly  stated  that  he  disapproves 
of  the  intimation  which  it  gave,  and  that,  if  he  had  been  con- 
sulted, he  would  never  have  allowed  it  to  go  out.     To  what 


374  MINUTES 

extent  the  course  of  events  would  in  other  respects  have  been 
changed  by  the  closer  union  of  the  Board  with  the  Lieutenant 
Governor  can  of  course  be  only  matter  of  conjecture,  but  that 
it  would  have  been  materially  changed  seems  to  me  in  a  high 
degree  probable.  Sir  Cecil  Beadon  displayed  undoubtedly  a 
too  sanguine  confidence,  but  he  had  not  a  particle  of  that 
tenacious  faith  in  semi-scientific  conclusions  which  charac- 
terised the  Board.  Had  he  stood  in  more  intimate  relations 
with  its  members,  I  think  it  likely  that  he  would  soon  have 
found  out  how  much  of  their  opinion  depended  on  facts  and 
how  much  on  deductions  from  principles  assumed  a  prioi^i  \.o 
govern  the  particular  case. 

No  doubt  the  argument  which  I  have  just  used  may  be 
turned  against  me,  since  it  may  be  said  that  it  at  most  proves 
the  expediency  of  abolishing  the  Board,  and  I  admit  that  this 
hypothetical  case  is  an  instance  in  which  the  Governor  could 
probably  have  been  more  in  the  right  than  his  Council. 
Councils  are,  however,  instituted  on  the  assumption  that 
Governors  are  occasionally  wrong,  and  require  to  have  their 
views  tested  by  attrition  against  those  of  other  men.  They 
are  in  the  nature  of  an  insurance  against  risk,  sometimes  the 
risk  entailed  by  incompetence  in  the  Governor,  but  sometimes 
also  the  risk  entailed  by  ability,  coupled,  as  it  may  be,  with 
lack  of  experience  or  one-sidedness.  A  member  of  an  Indian 
Council  can  hardly  contend  for  the  value  of  the  institution 
without  ill  grace  or  impropriety,  but  I  may  fairly  point  to  the 
success  of  the  Madras  and  Bombay  Governments.  The 
system  of  Lieutenant  Governorships  is  after  all  extremely 
recent,  and  if  it  has  exhibited  some  examples  of  brilliant 
success,  it  has  also  exhibited  one  terrible  miscarriage.  But 
through  considerably  more  than  a  century,  the  Governors  in 
Council  of  Madras  and  Bombay  have  successfully  conducted 
those  Governments  through  difficulties  scarcely  less  than  the 
difficulties  with  which  Governors  General  have  had  to  contend 
in  Upper  India.  I  confidently  assert  that  much  of  this 
success  has  been  owing  to  the  Councils.  We  have  ourselves 
known  some  able  and  eminent  Governors  of  minor  Presiden- 
cies, and  wc  have  read  of  others  ;  but  it  is  impossible  to  read 
down   the  list  of   Governors   without   seeing  that   the  great 


THE  GOVERNMENT  OF  BENGAL  375 

majority  were  not  men  of  any  mark.  If,  however,  the  system 
of  Governors  in  Council  has  enabled  a  series  of  mediocre  men 
to  carry  on  a  difficult  government  for  a  century  with  great 
success  as  the  ultimate  result  of  the  experiment,  I  really  do 
not  know  what  higher  praise  can  be  deserved  by  any  political 
system. 

If,  however,  a  Council  be  good  for  Madras  and  Bombay, 
I  venture  to  think  it  much  more  urgently  needed  for  the 
Governor  or  Lieutenant  Governor  of  Bengal  Proper.  The 
state  of  society  in  the  minor  Presidencies  is  comparatively 
uniform,  and  the  questions  to  be  dealt  with  are  simple.  In 
both  Presidencies  almost  all  the  land  is  in  the  hands  of  a 
peasant  proprietary.  Except  in  a  small  part  of  Madras,  the 
Europeans  are  collected  in  the  Presidency  towns,  their  in- 
terests scarcely  ever  conflict  with  those  of  the  Natives,  and 
in  Bombay  the  moral  gulf  between  the  races  is  bridged  over 
by  the  Parsees.  But  in  Bengal  the  problems  are  complex, 
many-sided,  and  of  extreme  difficulty.  There  is  scarcely  a 
single  question  which  has  not  a  European  side  and  a  Native 
side,  a  proprietor's  side  and  a  tenant's  side,  which  has  not  to 
be  regarded  from  the  point  of  view  of  the  educated  and  pro- 
gressive section  of  Bengali  society,  and  again  from  the  point 
of  view  of  rigid  Hinduism.  He  will  be  a  bold  man  who 
pronounces  an  unqualified  opinion  on  any  Bengal  question, 
and  not  a  wise  one  who  thinks  that  many  of  them  can  be 
solved  without  adjustment  and  compromise.  No  one  mind 
can  be  trusted  to  make  proper  allowance  for  all  the  elements 
in  such  problems.  To  put  the  case  as  strongly  as  possible,  I 
cannot  admit  that,  even  if  it  can  be  predicated  of  a  particular 
person  that  he  would  have  saved  half  the  lives  lost  in  Orissa, 
he  ought,  therefore,  to  be  left  to  himself  as  Governor  of 
Bengal. 

And  here  I  may  remark  that  I  do  not  precisely  under- 
stand what  is  meant  by  a  Council  of  Secretaries.  If  it  is  a 
contrivance  for  shackling  the  freedom  of  advice  by  giving  the 
Governor  advisers  who  may  be  dismissed  at  his  pleasure,  or 
who  may  look  to  him  for  preferment,  I  think  it  is  little  to  be 
desired.  The  principle  on  which  a  Council  should  be  formed 
seems  to  me  sufficiently  plain.      It  should  be  in  a  position, 


3/6  MINUTES 

not  only  to  give,  but  to  obtrude  advice  ;  but  it  should  not  be 
allowed  to  compromise  the  policy  of  the  Governor,  or  to 
obstruct  a  course  of  action  once  distinctly  determined  upon 
by  him.  The  procedure  which  the  Governor  General  and  the 
Governors  have  to  follow  in  overruling  their  Councils  does 
seem  to  me  somewhat  cumbrous  and  antiquated,  and  I  should 
gladly  see  it  simplified  by  Parliament. 

A  Council  organised  in  the  usual  Indian  way  has  gradu- 
ally and  insensibly  become  something  more  than  a  merely 
consultative  body.  It  has  become  a  very  excellent  contriv- 
ance for  dividing  the  labours  of  Government  without  at  the 
same  time  entailing  that  wide  separation  of  departments 
which  is  characteristic  of  the  Cabinet  system.  In  India,  at 
all  events,  the  boundaries  of  departments  are  to  a  great 
extent  artificial,  and  much  time,  paper,  and  red  tape  are  saved 
by  a  system  which  enables  the  Members  of  Government  occa- 
sionally to  overleap  these  boundaries.  The  present  Lieu- 
tenant Governor,^  than  whom  probably  none  of  us  have  known 
a  more  conscientious  worker,  assures  us  that  with  a  Council 
he  may  hope  to  dispose  of  the  business  of  his  Government — 
business  of  which  the  extraordinary  amount,  as  disclosed  in 
Mr.  Grey's  minute,  is  probably  a  surprise  even  to  those 
among  us  who  were  most  prepared  for  the  truth. 

As  an  English  Member  of  Council,  I  may  state  my 
strong  impression  that  the  concession  of  a  full  government  to 
Bengal  proper  will  have  a  very  wholesome  effect  on  English 
public  opinion,  which  knows  little  of  Lieutenant  Governors, 
but  understands  a  Governor  pretty  well,  and  which  will 
accordingly  cease  to  impose  on  the  Government  of  India  a 
responsibility  in  respect  of  Bengal  proper  which  it  is  abso- 
lutely impossible  for  us  to  discharge. 

If  effect  be  given  to  the  views  of  the  present  Lieutenant 
Governor  of  Bengal,  I  do  not  think  that  we  need  fear  to  face 
the  consequences,  even  though  they  should  amount,  in  the 
words  of  his  Excellency  the  Viceroy,  to  making  the  Governor 
General  Governor  General  only  over  the  North-Western  Pro- 
vinces and  the  Panjab.  It  may  be  well,  even  in  India,  to 
state  what  is  really  implied  in  this.  The  Government  of 
'  Mr.,  afterwards  Sir  William,  Grey. 


THE  GOVERNMENT  OF  BENGAL  377 

India  could  still  retain  an  authority  which  is  admitted  on 
all  sides  to  be  real  and  effective  over  the  two  Lieutenant 
Governorships  just  named,  one  including  30  millions  and  the 
other  14  millions  of  people.  It  would  still  govern  directly 
through  Chief  Commissioners,  who  are  only  deputies  of  the 
Governor  General,  Oudh  with  a  population  of  8  millions,  the 
Central  Provinces  with  'j\  millions,  and  British  Burma  with 
rather  more  than  2  millions.  Over  the  population  of  the 
Native  States,  amounting  to  nobody  knows  how  many  mil- 
lions, the  Governor  General  in  Council  would  still  exercise 
so  much  authority  at  all  events  as  consists  in  preventing  or 
punishing  any  conspicuous  and  flagrant  wrong.  He  would 
further  still  retain  by  law  the  power  of  '  superintending  and 
controlling  '  the  Governors  of  Madras,  Bombay,  and  Bengal 
proper,  who  rule  together  70  millions  of  men,  '  in  all  points 
relating  to  the  civil  or  military  administration  '  of  their  pro- 
vinces, and  of  compelling  those  functionaries  to  obey  '  his 
orders  and  instructions  in  all  cases  whatsoever '  (3  &  4 
Wm.  IV.,  c.  85,  sec.  65).  More  than  all,  the  great  centralised 
department  of  Finance  would  be  in  his  hands,  implying  among 
other  things  an  effective  control  of  public  works  throughout 
the  whole  of  India.  When  to  these  duties  are  added  the  super- 
vision of  a  vast  European  and  Native  Army,  and  the  conduct 
of  the  external  and  internal  diplomacy  of  India,  the  Governor 
General  in  Council  must  surely  be  admitted  to  be  at  the  head 
of  one  of  the  most  colossal  Governments  of  the  world,  even 
though  the  Local  Government  of  Bengal  should  be  allowed  a 
greater  degree  of  independence  than  is  permitted  to  it  at 
present.  Indeed,  this  enumeration  of  duties  does  not  state 
the  whole  truth.  Is  it  not  the  fact  tl>at  India  is  daily  becom- 
ing more  difficult  to  govern,  more  submissive  certainly  as 
regards  physical  resistance,  but  more  exacting  in  its  demands 
for  good,  precise,  and  politic  government .''  It  seems  to  me  a 
man  must  be  very  unobservant  who  does  not  perceive  that  a 
time  is  near  at  hand  when  either  the  duties  of  the  Govern- 
ment of  India  must  be  ill-discharged,  or  their  sphere  must  be 
contracted.  The  present  opportunity  seems  to  me  an  excel- 
lent one  for  making  timely  provision  against  an  inevitable 
future,  by  conceding  comparative  independence  to  a  province 


378  MINUTES 

which,  after  all,  from  the  very  necessity  of  the  case,  is  even 
now  pretty  much  left  to  itself. 

The  Secretary  of  State  intimates  to  us  that  it  is  scarcely 
possible  to  keep  the  question  of  the  constitution  of  the 
Bengal  Government  apart  from  the  question  of  the  seat  of 
the  Government  of  India.  I  myself  do  not  see  that  there  is 
any  insuperable  objection  to  the  permanent  or  prolonged 
presence  of  the  Government  of  India  in  the  territories  of  a 
Local  Government  which  takes  the  form  of  a  Governorship 
in  Council,  and  I  rather  infer  from  Sir  H.  Durand's  proposals 
that  he  is  of  the  same  opinion.  Let  us  assume,  however,  that 
the  higher  dignity  accorded  to  the  Government  of  Bengal  will 
render  it  more  convenient  that  the  Governor  General  in 
Council  should  be  absent  from  Calcutta  during  at  least  part 
of  the  year,  and  that  we  are  thus  driven  to  discuss  the  evils 
or  advantages  of  this  absence.  I  have  to  ask  whether  it  is 
really  true  that  the  system  inaugurated  by  Sir  John  Lawrence 
of  periodical  migrations  between  Calcutta  and  Simla  has 
failed.  Is  there  the  least  ground  for  questioning  Mr.  Grey's 
opinion  that  it  has  added  very  greatly  to  the  efficiency  and 
despatch  of  official  work  ?  Has  it  not,  at  the  very  least,  so 
far  succeeded,  that  it  may  fairly  be  taken  as  the  point  of 
departure  for  further  arrangements  ?  These  questions  appear 
to  me  likely  to  be  slurred  over,  through  the  natural  hesitation 
which  most  of  us  feel  in  contending  that  what  has  been  to  some 
of  us  a  personal  benefit  has  also  been  a  public  advantage. 

It  must  be  borne  in  mind  that  every  argument  against 
Simla  as  an  alternative  capital  has  to  be  maintained  in  the 
teeth  of  the  fact  that  for  much  of  the  last  five-and-thirty 
years  it  has  actually  been  the  alternative  capital,  if  capital  be 
taken  to  mean  the  seat  of  the  actual  Government.  Further, 
the  actual  Government  of  the  country  tended  more  and  more 
to  fix  itself  there.  It  is  no  mere  conjecture  when  I  assert 
that,  if  Lord  Elgin  had  lived,  he  would  never  have  come  near 
Calcutta  again.  He  had  already  spent  one  summer  in  Simla, 
and  of  the  three  which  appeared  to  remain  to  him,  he  intended 
to  spend  two  at  Simla,  and  one  at  some  other  hill-station. 
The  Commander-in-Chief  had  for  some  time  lived  at  Simla 
almost  exclusively.     The  truth  is,  the  theory  that   Calcutta 


CALCUTTA   AND   SIMLA  379 

was  the  capital  was  preserved  only  by  a  fiction,  and  a  fiction 
so  transparent,  that,  did  I  not  know  something  of  the  powder 
of  fictions,  I  should  wonder  at  men  being  blinded  by  it.  The 
Governor  General's  Council  remained  there  under  a  President 
invested  nominally  with  the  full  powers  of  Governor  General 
in  Council.  In  point  of  fact,  however,  a  division  of  business 
was  made  between  the  Governor  General  in  the  Upper 
Provinces  and  the  President  in  Council  at  Calcutta  on  the 
principle  of  leaving  to  the  latter  all  business  which  was  of  a 
simple,  routine,  or  common-place  character.  Everything 
which  was  of  importance  went  directly  to  the  Governor 
General,  and  there  was  either  a  rule  or  an  understanding  that, 
if  any  matter  which  came  before  the  President  in  Council 
assumed  the  least  importance,  it  should  be  sent  on  to  the 
Governor  General. 

The  drawbacks  on  the  position  of  Simla  which  Sir  H. 
Durand  has  stated  with  undeniable  force  existed  in  former 
days  with  many  others  which  have  since  disappeared.  Yet 
they  did  not,  in  point  of  fact,  prevent  the  gradual  approach 
of  Simla  to  the  status  of  a  capital,  and  they  have  not  been 
hitherto  assigned,  at  least  not  generally,  as  fatal  objections  to 
the  resort  of  Governors  General  to  the  hills.  Great  evils  are 
no  doubt  alleged  to  have  resulted  from  thestay  of  the  Gover- 
nors General  at  Simla,  but  I  have  always  heard  these  attri- 
buted to  another  incident  of  that  stay,  the  severance  of  the 
head  of  the  Government  from  his  official  and  responsible 
advisers,  the  very  incident  to  which  the  present  Viceroy  has 
applied  a  remedy.  Moreover,  it  is  to  be  remarked  that  Sir 
H.  Durand  urges  against  Simla  the  precise  drawbacks  which 
are  in  course  of  removal.  The  railway  will  be  very  shortly 
opened  to  Ambala  ; '  before  very  long  it  will  be  completed 
between  Ambala  and  Amritsar,  and  it  is  settled  that  it  will 
be  prolonged  to  Attok  or  Peshawar.  When  these  lines  are 
somewhat  further  advanced,  and  when  improvements  now  in 
progress  on  the  hill  road  are  finished,  it  appears  to  me  that 
Simla  will  be  fully  entitled  to  the  benefit  of  the  argument 
which  is  usually  employed  in  favour  of  Calcutta,  as  against 
Bombay  and  Puna,  that  modern  facilities  of  communication 

'  It  is  now  open  to  Kalka,  about  forty  miles  from  Simla. 


380  MINUTES 

have    rendered    the    precise   situation    of  the   capital    unim- 
portant. 

Sir  H,  Durand  has  further  objected  that,  through  the 
migrations  between  Calcutta  and  Simla,  two  months  of  the 
year  are  lost.  The  time  is  greatly  too  long  according  to  my 
experience,  and  I  should  hardly  describe  the  days  consumed 
in  travelling  as  necessarily  lost  to  official  labour,  but  no  doubt 
the  experience  of  Members  of  Council  concerned  with  other 
departments  may  give  a  different  result.  I  venture,  however, 
with  all  deference  to  my  honourable  and  gallant  colleague,  to 
express  an  opinion  that  the  argument  involves  a  fallacy — the 
fallacy  implied  in  testing  an  existing,  by  comparison  with  a 
non-existent,  system.  The  two  months  supposed  to  be  lost 
could  only  have  been  saved  by  a  Government  which  remained 
the  whole  year  in  one  place.  But  where  is  there  such  a 
Government  in  India  ?  The  larger  number  of  the  Local 
Governments  in  India  move  undisguisedly  every  year  to  the 
hills,  with  all  or  nearly  all  their  Secretariats,  and  the  fact  is 
the  more  remarkable,  because  these  Governments  are  not, 
like  the  Government  of  India,  charged  simply  with  the  func- 
tions of  superintendence  and  control,  but  stand  in  direct 
contact  and  relation  with  the  people.  More  than  this  :  every 
Government  and  every  administrative  functionary  in  the 
country  is  perpetually  in  movement  during  the  cold  weather 
or  the  rains  ;  yet  nobody  ever  thought  of  describing  the  time 
spent  in  locomotion  as  lost.  Nor  is  this  all.  The  system  of 
the  present  Governor  General  can  only  be  fairly  judged  by 
comparing  it  with  that  which  it  superseded, — that  is,  with  a 
system  under  which  the  Governor  General,  separated  from 
his  Council  for  four  years  together,  travelled  at  large  during 
the  winter  and  spent  the  rest  of  the  year  at  Simla.  I  am 
happy  to  find  myself  in  entire  agreement  with  Sir  H.  Durand 
in  my  estimate  of  this  exploded  system,  under  which  impor- 
tant papers  sometimes  went  three  times  over,  1,500  miles, 
between  the  Governor  General  in  the  Upper  Provinces  and 
the  Council  at  Calcutta  I  myself,  judging  from  the  experi- 
ence of  a  single  twelvemonth,  believe  it  to  be  impossible  for 
any  human  arrangement  to  have  worked  more  perversely. 

The   Government  of  India   is   now  abreast  of  its   work. 


CALCUTTA   AND   SIMLA  38 1 

When  the  present  system  began,  it  was  heavily  in  arrcar,  and 
I  beHeve  there  are  no  traces  of  a  period  at  which  it  was  not 
in  arrear,  although  the  work  was  infinitely  less  than  it  is  now. 
The  improvement  is  no  doubt  partly  owing  to  a  cause  on  the 
efficiency  of  which  Sir  H.  Durand  and  I  are  agreed — the 
presence  during  four  years  of  the  Governor  General  with  a 
Council  which  now  practically  consists  of  heads  of  depart- 
ments. But  I  am  sure  it  is  also  due  to  another  influence — 
the  influence  of  a  fairly  good  climate  on  the  quality  and  speed 
of  our  work. 

Discomfort  and  disease  have  so  long  been  the  conditions 
of  official  life  in  India,  and  so  much  admirable  work  has  been 
done  under  those  conditions,  that  there  is,  I  venture  to  think, 
a  disposition  in  some  minds  to  regard  them  as  indissolubly 
associated  with  the  good  government  of  the  country.  Yet 
surely,  in  settling  the  question  of  the  capital,  it  is  unreason- 
able to  leave  out  of  account  the  discovery  made  thirty  or 
forty  years  ago,  that  Nature  has  been  less  unkind  to  us  than 
had  been  supposed,  and  that  within  the  geographical  limits  of 
India  there  are  climates  in  which  the  English  race  retains  or 
regains  its  native  vigour.  I  quite  understand  the  necessity  of 
guarding  against  the  temptation  to  overrate  the  value  of 
these  climates,  and  to  underrate  the  difficulty  of  utilising- 
them.  Yet  there  may  be  prejudices  of  the  opposite  kind  ; 
and  the  censors  of  resort  to  the  hill  climates  should  be  sure 
that  unconsciously  they  are  not  arguing  as  a  conservative  of 
the  Spanish  Indies  may  have  argued  against  the  use  of  the 
Jesuits'  bark  in  fever,  as  a  practice  in  itself  effeminate,  and 
calculated  to  excite  ill-feeling  in  those  who  could  not  afford 
to  purchase  the  new  drug. 

Everything  is  to  be  preferred  to  miscarriages  of  policy 
and  administration,  and  if  the  interest  and  safety  of  the 
British  Indian  Empire  do  not  permit  its  government  to  be 
conducted  in  a  good  climate,  it  must  be  conducted  in  a  bad 
one.  Yet  the  necessity  is  not  the  less  a  great  public  misfor- 
tune. It  is  most  unfortunate,  for  example,  that  the  area  from 
which  Governors  General  and  Governors  are  taken  should  be 
narrowed.  Ifthereisone  thing  more  certain  than  another, 
it  is  that  the  British  Parliament,  as  it  grows  more  popular, 


382  ■  MINUTES 

will  be  more  and  more  inclined  to  govern  its  great  depen- 
dency directly  through  functionaries  known  to  itself  and  sent 
from  home  ;  and  every  chance  thrown  away  of  mitigating  the 
perhaps  unreasonable  fear  of  the  Indian  climate  which  prevails 
in  England  is  a  chance  the  less  for  the  good  government  of 
this  country.  Again,  the  necessity  of  which  I  have  spoken 
is  unfortunate,  because,  though  men  bred  in  India  may  work 
well  in  extraordinarily  bad  climates,  nevertheless  they  have 
thus  much  in  common  with  men  bred  in  England  that  they 
work  better  in  better  climates — more  efficiently,  because 
either  more  vigorously  or  more  calmly.  There  is  no  economy 
which  a  Government  can  practise  like  the  economy  of  its 
servants'  health  and  nerve  ;  it  may  be  compelled  to  expend 
them  on  mere  resistance  to  unfavourable  physical  conditions, 
but  if  it  goes  an  inch  beyond  absolutely  necessary  expendi- 
ture, it  is  guilty  of  the  most  foolish  form  of  prodigality. 

Some  very  painful  statistics  of  death  and  disease  in  the 
High  Court  during  the  last  five  years,  which  I  read  the  other 
day  in  a  minute  of  Mr.  Justice  Scton-Karr,  are  fatal,  I  am 
sorry  to  say,  to  Sir  H.  Durand's  impression  that  the  Court 
furnishes  any  evidence  of  the  healthiness  of  Calcutta.  I  am, 
however,  disposed  to  agree  with  him  that  on  grounds  of  salu- 
brity alone  it  would  be  hardly  worth  while  changing  the  seat 
of  the  Government  to  any  other  place  in  the  plains  of  India. 
My  objection  to  Calcutta  is  precisely  that  of  which  I  admit 
the  force  when  urged  against  Simla.  Neither  Calcutta  nor 
Simla  has  any  claim  to  be  considered  a  capital  in  the  sense 
in  which  the  word  has  generally  been  understood.  One 
would  suppose  that  the  natives  of  a  country  to  be  governed 
from  a  capital  would  approach  it  with  tolerable  readiness, 
would  take  their  fashions  of  life  and  thought  to  some  extent 
from  it,  would  be  represented  in  the  society  which  inhabits  it, 
and  would  reflect  the  civilisation  of  which  it  is  the  exemplar. 
These  tests  of  a  capital  are  satisfied  by  Calcutta  so  far  as 
regards  Bengal  proper  ;  but,  so  far  as  respects  the  rest  of 
India,  Calcutta  is  remarkable  for  not  satisfying  a  single  one 
among  them.  Not  even  the  most  powerful  of  Indian  motives, 
a  o-rievance  to  be  redressed,  will  in  most  cases  bring  a  native 
of  India,  other  than  a  Bengali,  to  the  dreaded  city.     Simla  is 


CALCUTTA   AND   SIMLA  383 

certainly  not  much  more  resorted  to,  but  this  is  rather  the 
fruit  of  ignorance  than  of  fear  ;  and  Simla  has,  beyond  doubt, 
the  advantage  of  Calcutta  in  the  number  of  experienced 
functionaries  from  all  parts  of  India  who  come  to  it.  I  myself 
have  seen  more  there  in  one  month  than  at  Calcutta  in  six, 
and  this  is  only  the  natural  result  of  the  difference  between  a 
place  to  which  everybody  will  come  if  he  can,  and  a  place  to 
which  nobody  will  come  if  he  can  help.  But  neither  city 
seems  to  me  to  be  a  capital,  unless  a  capital  be  merely  the 
spot  at  which  the  Government  may  be  for  the  time  being. 

It  would  be  unreasonable  that,  after  all  I  have  said,  I  did 
not  state  affirmatively  my  own  views  of  the  best  arrangements 
which  could  be  adopted.  I  take  the  liberty  of  calling  atten- 
tion to  an  experiment  which  Lord  Elgin  was  on  the  point  of 
trying  when  he  was  overtaken  by  death.  A  standing  camp 
had  been  established  in  the  neighbourhood  of  Lahore,  and 
there  Lord  Elgin  intended  to  assemble  both  the  Executive 
and  the  Legislative  Councils.  I  venture  to  suggest  that,  at 
the  beginning  of  the  cold  season,  such  a  camp  should  be 
established  near  each  of  the  great  Native  cities  in  turn  ;  that 
the  Supreme  Government,  descending  from  the  hills  some- 
what sooner  than  at  present,  should  be  received  in  it,  and 
should  then  proceed  with  such  legislation  as  would  more 
especially  affect  Native  interests,  reserving  for  Calcutta  or 
Bombay,  which  would  be  visited  afterwards,  the  discussion  of 
the  budget  and  of  such  provisions  of  the  Codes  as  are  intended 
for  general  application.  Natives  of  India  in  any  number 
would  resort  at  that  season  to  Lahore,  Agra,  Delhi,  Lucknow, 
or  Benares  ;  and  there  could  be  no  better  opportunity  for 
holding  those  congresses  of  governors,  lieutenant  governors, 
and  chief  commissioners,  which  have  been  recommended  by 
high  authority  as  the  best  preservative  against  that  interpro- 
vincial  friction  which  has  become  so  annoying  of  late  years. 
The  Supreme  Government  of  India  would  thus  become  peri- 
patetic. If  it  be  objected  that  there  is  no  example  of  such  a 
government,  I  answer  first  that  the  fact  is  not  so,  since  almost 
all  governments  originating  in  the  conquest  of  hot  countries 
by  persons  born  in  a  cooler  climate  have  been,  as  a  matter  of 
history,  more  or  less  peripatetic,  and  that,  even  if  the  objec- 


384  MINUTES 

tion  were  well  founded,  the  British  Empire  in  India  is  too 
novel  and  extraordinary  an  experiment  to  be  dependent  on 
any  precedents  except  those  which  its  own  experience 
furnishes.  I  would  ask  whether  such  a  system  as  I  have 
described  would,  in  truth,  be  more  than  the  old  progresses  of 
the  Governor  General,  cured  of  one  particular  vice,  and 
adapted  to  the  circumstances  and  condition  of  the  India  of 
the  present  day.  The  cost  of  time  and  money  entailed  by 
these  movements  might,  in  my  judgment,  be  reduced  within 
narrow  limits  by  organisation  and  forethought.  Much  of  the 
public  and  private  expense — the  first,  anything  but  large — 
and  much  of  the  loss  of  time  entailed  by  the  system  of  the 
last  four  years,  have  been  attributable  to  its  provisional  cha- 
racter. 

INDIAN  UNIVERSITIES 

July  29,  1868. 

I  HAVE  kept  these  papers  some  little  time,  because,  as  the 
proposal  which  they  convey  is  avowedly  founded  on  condem- 
nation of  the  University  of  Calcutta,  of  which  I  was  for  four 
years  Vice-Chanccllor,  I  wished  to  be  sure  that  I  was  not 
viewing  it  in  the  light  of  my  natural  prejudices.  I  will  say 
at  the  outset  that  some  of  the  remarks  of  the  Panjab  Educa- 
tional Officers  on  the  existing  course  of  the  Calcutta  Univer- 
sity seem  to  me  to  deserve  the  consideration  of  Government 
on  their  own  merits.  Much  of  their  criticism  appears  to  me 
extremely  captious  ;  but  while  I  think  that  the  defects  which 
they  pretend  to  point  out  are  for  the  most  part  purely  imagi- 
nary, I  have  never  been  blind  to  the  indirect  tendency  of 
the  mode  of  examination  prescribed  by  the  University,  its 
tendency  to  prevent  the  acquisition  of  a  certain  amount  of 
knowledge  (it  will  be  at  best  a  very  moderate  amount)  by 
students  who  cannot  master  a  Western  language.  It  may  be 
worth  the  while  of  the  Government  of  India  to  consider 
whether  (so  far  only  as  concerns  the  more  backward  provinces 
of  the  Bengal  Presidency,  such  as  the  Panjab  and  parts  of 
the  North-West)  some  importance  ought  not  to  be  attached 
to  the  suggestion  that  candidates  for  the  Entrance  Examina- 
tion should  have  the  option  of  being  examined  in  their  verna- 


INDIAN    UNIVERSITIES  385 

cular,  and  that  the  same  option  should  be  extended  to  candi- 
dates for  the  First  Examination  in  Arts,  so  soon  as  proper 
evidence  can  be  produced  that  satisfactory  vernacular  text- 
books are  available.  I  must  admit  that  this  time  is,  in  my 
judgment,  far  enough  awa}',  when  I  read  the  list  of  subjects 
prescribed  for  that  examination.  I  have  no  right  to  speak 
A\ith  confidence  of  Oriental  languages  ;  but  I  venture  to  think 
that  those  who  believe  they  can  easil}-  be  made  the  instru- 
ments of  conveying  knowledge  (by  which  I  mean  positixe  and 
not  literary  knowledge),  have  scarcely  paid  sufficient  attention 
to  the  long  and  laborious  process  by  which  even  the  Western 
languages  have  been  so  fashioned  as  to  admit  of  their  becom- 
ing vehicles  of  accurate  thought.  Still  it  is  possible  that 
something  can  be  done,  and  the  possibility  may  deservedly 
be  weighed  by  the  Government  of  India.  It  is  true  that  the 
law  does  not  give  the  Government  a  direct  control  over  the 
University.  But  I  feel  absolutely  sure  that  the  Syndicate 
and  Senate,  although  the  former  body  has  apparently  declined 
to  modify  its  system  in  the  particulars  above  referred  to  for 
the  whole  Presidency,  would  receive  with  all  possible  deference 
a  suggestion  of  the  Government  for  its  modification  in  respect 
of  the  less  advanced  provinces. 

The  establishment  of  a  new  University  at  Lahore  is  pro- 
posed by  the  Panjab  authorities,  partly  as  an  alternative 
measure  to  changing  the  system  of  the  Calcutta  University, 
and  indeed  it  is  mainly  advocated  by  them  on  the  score  of 
defects  in  that  system.  But  there  is  another  consideration 
which  appears  to  have  powerfully  influenced  some  of  them. 
They  are  under  the  impression  that  there  is  something  neces- 
sarily and  naturally  imperfect  in  a  collegiate  system,  such  as 
alone  exists  at  present  at  Lahore,  and  that  teaching  colleges 
can  never  be  wholly  successful  unless  they  are  developed  into 
teaching  universities.  This  view  is  strongly  taken  by  Mr. 
Aitchison,^  who  says  '  the  main  object  of  a  University  is  not 
so  much  to  test  what  students  know  as  to  guide  them  in  their 
studies,  and  train  them  in  proper  methods  of  learning.'  I 
own  I  consider  the  argument  as  dealing  mainly  with  words. 
*  University '   and    '  college '    meant    originally    precisely    the 

'  Now  Sir  C.  U.  Aitchison,  K. C.S.I. 

C  C 


386  MINUTES 

same  thing — a  corporation  ;    and,  taking  the  usage  of  modern 
Europe  as  a  whole,  the  words   have  been   used  quite  inter- 
changeably.    The  true  distinction  is  not  between  universities 
and  colleges,  but   between   teaching   bodies    and    examining 
bodies.     There   have    been    colleges    which    taught    little    or 
nothing,  and  existed   principally  for  the  purpose   of  testing 
knowledge  acquired  elsewhere,  as,  for  example,  the  Colleges 
of  Physicians  and   Surgeons.     There  have,  again,  been  uni- 
versities where  the  teaching  was  of  the  first  order,  but  where 
the  function  of  examination  was  either  not  exercised  at  all  or 
very  inefficiently.     Such  were  the  Scottish  universities  forty 
or  fifty  years  ago,  some  among    which    actually    sold    their 
degrees,  even  their  medical  degrees,  for  money.      If,  however, 
Mr.  Aitchison  and  those  who  agree  with  him   mean   that   the 
teaching    function    and    the    testing    function     improve    one 
another  when  they  are  blended,  I  can  only  say  that  my  expe- 
rience and  observation  point  in  precisely  the  opposite  direction. 
Teaching    institutions    succeed    because   they   are  served  by 
efficient  teachers,  and  the  name  by  which  they  are  called  is 
absolutely  immaterial.     But,  on  the  other  hand,  the  process  of 
examination  or  testing  results  is  distinctly  injured  by  identify- 
ing the  teaching  and  examining  bodies.      I    venture   to  say 
that  in  the  German   and    Scottish    Universities    the    testing 
process  is  even  now  very  far  from  being  on  a  level  with  the 
teaching.     In  the  English  Universities,  examination  is  almost 
wholly  disjoined  from  teaching,  the  universities  almost  exclu- 
sively undertaking  the  first,  so  far  as  concerns  degrees,  the 
colleges  conducting  the  practical   education  of  the   student. 
While  the  success  of  the  colleges  at  Oxford  and  Cambridge  is 
of  course  matter  of  opinion,  it  is  by  the  Universities  of  Oxford 
and  Cambridge  that  examination   has   been,  developed   into 
what  may  almost  be  called  a  scientific  process  ;  yet  one  small 
blot  on  the  system  cannot  be  denied — the  shade  of  suspicion, 
which  occasionally  rests  on  an  examiner,  if  not   necessarily 
examining  his  own  pupils,  yet  sometimes  testing  the  know- 
ledge of  students  trained  on  a  system  to  which  he  is  known 
to  be  wedded.     The  most  satisfactory  examining  body  I  know 
is  the  University  of  London,  which  has  performed  the  difficult 
feat  of  inspiring  a  number  of  teaching  institutions,  separated 


INDIAN    UNIVERSITIES  387 

by  differences  of  religious  creed,  with  the  most  perfect  confi- 
dence in  its  impartiahty,  as  well  as  its  thoroughness.  I  say 
nothing  of  the  University  of  France,  since,  though  it  is  a 
purely  examining  institution  and  has  the  highest  reputation, 
I  do  not  profess  to  be  sufficiently  acquainted  with  it. 

I  have  insisted  on  the  distinction  between  teaching  bodies 
and  examining  bodies  as  being  the  only  one  which  has  any 
reality,  because  it  certainly  appears  to  me  that  a  plan  for  a 
university  at  Lahore  amounts  to  a  proposal  that  the  Panjab 
Educational  Department  shall  be  allow^ed  to  test  its  own 
results,  instead  of  ha\ing  them  tested  by  an  external  body 
much  larger  than  itself.  Doubtless  there  are  some  of  the 
results  aimed  at  by  the  Panjab  authorities  to  which  the 
Calcutta  University  applies  no  tests  whatever,  because  it  does 
not  consider  them  of  any  value  ;  but  still,  on  the  whole,  the 
ultimate  aim  of  teaching  in  the  Panjab  must  be  much  the 
same  as  in  Lower  Bengal,  and  by  this  project  the  Panjab 
Government  seems  to  me  to  propose  that  its  own  teachers 
shall  test  the  degree  of  their  own  success.  This  is  surely  very 
objectionable.  Even  in  Calcutta  we  feel  the  difficulty  created 
by  the  comparative  smallness  of  the  educated  class  outside 
the  teaching  body,  and  are  too  often  driven  to  take  our 
examiners  from  among  educational  functionaries  who,  though 
they  may  not  exactly  be  set  to  examine  their  own  pupils  in 
the  very  subjects  in  which  they  have  instructed  those  pupils, 
have  nevertheless  necessarily  formed  opinions  about  them  in 
their  own  lecture-rooms.  This  difficulty  will  be  much  greater 
in  the  Panjab.  The  advanced  students  are  not  numerous. 
The  teaching  body  is  but  small,  and  I  think  it  may  be  said 
without  offence  that,  so  far  as  the  higher  education  is  con- 
cerned, it  has  not  been  conspicuously  successful,  perhaps  not 
wholly  through  its  own  fault.  From  this  body  the  gentlemen 
who  will  confer  the  degrees  of  the  Lahore  University  will  have 
to  be  selected  for  a  long  time  to  come,  for  though  assistance 
may  occasionally  be  procurable  from  outside,  functionaries  in 
the  Lower  Provinces  are  too  busy  to  be  spared  for  Lahore  ; 
and  I  fear  that,  if  their  reports  were  unfavourable,  they  would 
not  be  summoned  inconveniently  often.  Nor  is  it  the  only 
drawback  on  the  project  that  the  educational  officials  in  the 

c  c  2 


388  MINUTES 

Panjab  would  become  judges  in  their  own  cause.     The  judg- 
ment pronounced  would  be  ostensibly  the  same  as  the  judg- 
ment pronounced  by  the  Bengal  examiners  on   the  Bengal 
students.     A  B.A.  or  LL.B.  of  Lahore  would  rank  with  a  B.  A. 
or  LL.B.  of  Calcutta.     Now  a  Bengali  Bachelor  of  Arts  or 
Laws  may  be  a  young  man  who   has  an   unpleasantly  good 
opinion  of  himself,  but  he  has  really  proved  that  he  possesses 
a  considerable  amount  of  genuine  knowledge.     These  degrees 
are  coming  to  be  more  and  more  recognised  by  the  Govern- 
ment, the  High  Courts,  and  employers   of  various  kinds  as 
guarantees  of  ability,  and,  indeed,  if  they  did  not  possess  an 
ascertainable  value,  few  Natives  would  submit  to  the  laborious 
preparation  required  for  them.     But  now  a  new  university  is 
to  be  established  in  the  Bengal  Presidency  with  the  power  of 
conferring    degrees    colourably    the    same,    apparently    even 
LL.B.  degrees,  which  admit  to  the  pleaderships  of  the  High 
Courts  without  examination,  and  medical  degrees,  which  carry 
with  them  a  license  to  practise.     Already  some  inconvenience 
is    experienced    through    the    competition    of    Madras    and 
Bombay  degrees,  but  those  universities  are  at  a  great  distance, 
and  they  are  founded  on  the  same  general  principles  as  the 
Calcutta    University.     But  the  Lahore  University  avowedly 
repudiates  those  principles  or  man}'  of  them.      I   agree  with 
Sir  H.  Durand  that  it  is  not  easy  to  frame  a  clear   notion  of 
all  its  objects,  but  it  is  at  all  events   admitted   that  some  of 
them  are  not  educational  but  political.     In  someway  or  other, 
though   I   am  not  altogether  able  to  say  in   what   way,  the 
Panjab  nobles  are  to   be  conciliated  by  the  quality  of  the 
knowledge  diffused,  or  by  the  methods  of  imparting  it.     Even, 
however,  if  I  could  be  sure  that  the  knowledge  tested  were  of  the 
same  description  as  that  tested  by  the  University  of  Calcutta, 
I  cannot,  for  reasons  above  stated,  feel  any  confidence  in  the 
sufficiency  of  the  tests.     I    venture,  therefore,   to  express  a 
hope  that  if  this  University  be  established  it  will  be  compelled 
to  give  some  new  name  to  its  grades,  and  will  not  be  allowed 
to  put  into  circulation   coin  which   I   will   not  call  base,  but 
which  for  some  time  to  come  will  be  heavily  alloyed,  stamped 
with  the  same  mint-mark  as  that  issued  by  the  Calcutta  Uni- 
versity. 


INDIAN    UNIVERSITIES  389 

If  there  is  anything  in  the  argument  that  the  effect  of 
estabhshing  the  Lahore  University  will  be  to  take  away  from 
the  efficiency  of  examination,  it  deserves  the  more  serious 
consideration,  because  the  subsidy  of  the  Government  is 
expressly  asked  on  the  grant-in-aid  principle  ;  and  if  I  am 
right,  the  very  condition  of  a  grant-in-aid — a  stringent  system 
of  testing  results — will  be  wanting.  As  to  the  results  them- 
selves, I  have  said  before  that  I  have  failed  to  gather  from  the 
papers  what  the  expectations  of  the  Panjeib  Government  are. 
In  the  first  place,  the  Panjab  Government  does  not  appear  to 
me  to  distinguish  clearly  between  the  results,  no  doubt  con- 
siderable, which  might  be  obtained  by  improved  teaching  in 
the  Panjab  colleges,  and  the  results,  very  scanty  at  most, 
which  might  be  looked  for  from  a  change  in  the  form  of  the 
examination  papers.  Next,  the  Panjab  authorities  seem  to 
have  a  generally  misty  conception  of  what  they  want  and  of 
what  they  intend  to  aim  at.  One  thing  which,  as  it  seems, 
may  be  hoped  for,  is  the  improvement  of  the  Panjab  ver- 
naculars, that  is,  Panjabi  and  Pashtu.  Now,  undoubtedly 
direct  efforts  have  before  been  made  to  bring  about  the  so 
called  improvement  of  old,  exuberant,  and  cultivated  languages ; 
but  this  has  been  managed  by  forbidding  the  use  of  all  words 
except  those  sanctioned  by  the  best  writers.  Rude  languages, 
so  far  as  I  know,  can  only  be  improved  by  the  growth  of 
ideas  among  the  people  who  speak  them,  or  (as  in  the  case  of 
Bengali)  by  contact  with  other  languages  which  have  long 
been  used  as  media  of  thought.  The  proposal  to  found  profes- 
sorships for  the  improvement  of  rude  languages,  or  at  all 
events  to  make  that  improvement  a  subject  of  direct  study 
and  teaching,  seems  to  me  a  very  extraordinary  one  and 
likely  to  lead  to  very  singular  results.  I  should  say  that  the 
production  of  a  dialect  like  the  '  Pigeon  English  '  of  Hongkong 
and  Canton  is  a  not  improbable  fruit  of  the  experiment. 
Again,  in  what  is  the  cultivation  of  Oriental  literature  by  the 
Lahore  University  to  be  different  from,  or  superior  to,  the 
cultivation  of  the  same  literature  by  the  colleges  in  Calcutta 
and  its  vicinity  .''  First  among  the  objects  of  the  new  institu- 
tion is  placed  '  encouragement  to  the  enlightened  study  of 
Oriental  languages  and  literature.'     What  is  the  meaning  of 


390  MINUTES 

*  enlightened  ? '     The  only  meaning  I  can  attach  to  it,  and  I 
presume  the  meaning  which  the  Government  of   India  was 
intended  to  attach  to  it,  is  that  the  principles  of  Western  philo- 
logy and  criticism  are  to  be  applied  to  Eastern  language  and 
literature.     But,  if  this  be  so,   the  object  is  the   last   which 
would    call    forth   the  enthusiasm   of  the  Panjab   Chiefs,   or 
rather  of  the  classes   from  whom   they  take  their  opinions. 
Can  anybody  doubt  for  a  moment  that  a  Pundit  learned  in 
the  native  fashion  would  (if  he  knew  anything  about   them) 
regard  the  labours  of  the  great  Calcutta  Sanskrit  scholar  who 
has   made  native  erudition  famous  in   Europe   as  being  not 
simply  worthless  but  sacrilegious  ?     Can  anything  be  fancied 
more  offensive  to  a  devout  Muhammadan,  possibly  with  a  latent 
leaning  towards  the  Akhund  of  Swat,  than  a  really  critical 
sifting  of  his  sacred  books  ?     The  fact  is,  the  application  of 
modern  critical   and   philological   principles  to   languages  in 
which  a  sacred  literature  is  embodied  is  essentially  a  rational- 
ising and  destructive  process,  and  so  it  has  manifestly  proved 
in  Lower  Bengal.     The  difference  in  the  point  of  view  between 
the  Panjab  Government  and  the  subscribers  to  the  University 
is  brought  out  with  almost  ridiculous  clearness  in  the  corre- 
spondence with  the  Maharaja  of  Cashmere.     The  Maharaja 
subscribes  (and  indeed  thanks  God  that  he  is  allowed  to  sub- 
scribe) '  one  lakh  Sn'nagri  rupees  '  to  a  University  which  has 
for  its  object  the  propagation  of  the  vernacular  literature  and 
sciences  ;  in  other  words,  of  the  science  which  places  the  world 
on  a  tortoise  and  of  the  literature  which  (whatever  be  its  in- 
trinsic poetical  value)  is  taught  according  to  methods  which 
I  do  not  think  it  presumptuous  to  describe  as  a  multiplication 
a  thousandfold  of  the  worst  educational  follies  from  which  we 
are  escaping  in   England.     But  the   Panjab   Government  in 
thanking  the  Maharaja  accepts  his  donation  for  the  '  propa- 
gation of  literature  and  science  through  the  Indian  tongues.' 
It  is  difficult  to  conceive  objects  more  different  than  those  for 
which  the  money  was    given    and    those    for    which    it    was 
received.     The  fact  is,  the  Lahore  University,  considered  as  a 
teaching  institution,  must  either  become  a  laboratory  for  the 
production  of  Maulvis  and  Pundits,  or  else,  from  its  freer  use 
of    vernacular   instruction,   it    will    ultimately    shock    Native 


CASiniERE  :    SUCCESSION  391 

prejudices  far  more  acutely  than  tlic  institutions  in  Bcni^al  of 
which  the  teaching  is  in  English. 

I  am  very  sorry  to  say  anything  in  apparent  disparage- 
ment of  those  Native  sympathies  which  are  alleged  as  a  reason 
for  consenting  to  the  Panjab  scheme.  But,  I  must  say,  I 
think  we  ought  to  be  on  our  guard  against  alleged  bursts  of 
Native  enthusiasm  in  the  Panjab.  Even  in  my  time  in  India 
I  have  witnessed  several  such  bursts,  as,  for  example,  in  favour 
of  giving  a  testimonial  to  Colonel  Elphinstone  for  his  services 
in  the  cause  of  female  education.  We  ought  to  know  what 
solicitation  there  has  been,  official  or  non-official,  direct  and 
indirect,  and  \\-hat  representations  have  been  held  out  to  the 
subscribers.  There  are  many  reasons  at  the  present  time  why 
several  classes  in  the  Panjab  should  be  willing  to  contribute 
freely  towards  any  object  which  functionaries  appear  to  have 
at  heart,  and  the  liberality  of  the  Maharaja  of  Cashmere  is 
perfectly  intelligible  quite  apart  from  his  misconception  of  the 
object  for  which  he  subscribed. 

So  far  as  the  Panjab  Educational  Department  complains 
of  certain  peculiarities  of  the  Calcutta  course,  I  think  its  repre- 
sentations deserve  attention.  For  the  rest,  it  seems  to  me  that 
this  scheme,  instead  of  coming  before  us  in  so  extremely  magni- 
ficent a  form,  should  have  been  submitted  in  the  more  modest 
guise  of  a  proposal  to  improve  the  machinery  for  the  higher 
teaching  in  the  Panjab  colleges.  In  this  view  the  suggestion 
of  the  Delhi  college  functionaries  that  the  subscribed  money 
should  be  divided  between  the  Delhi  and  Lahore  Colleges  and 
devoted  to  the  above  purpose  appears  to  show  great  good  sense. 

Notwithstanding  the  foregoing  minute,  a  university  was  established 
for  the  Panjc4b  by  Act  XIX.  of  1882. 

CASHMERE:    SUCCESSION  OF  COLLATERALS 

August  4,  1S68. 

It  was  proposed  to  promise  the  succession  to  the  State  of  Cashmere 
to  unadopted  collaterals  of  the  reigning  Maharaja.  Mr.  Maine 
wrote  as  follows  : 

While  I  think  that  the  opinion  of  His  Excellency  the 
Viceroy  as  to  the  services  of  the  Cashmere  House  ought  to  be 


392  MINUTES 

regarded  as  conclusive,  and  while  I  consider  it  most  expedient 
to  take  some  step  which  may  reassure  the  present  Maharaja 
after  the  persistent  attacks  made  on  his  Government,  I  feel 
myself  compelled  to  agree  on  the  question  of  principle  with 
Sir  Henry  Durand.  I  cannot  doubt  that  this  concession,  if 
made,  will  almost  immediately  become  known  to  the  other 
Native  chiefs  of  India,  and  will  be  made  the  foundation  of 
universal  demands  for  similar  indulgence.  If  it  be  true  that 
the  minutest  distinction  accorded  at  a  Viceregal  Durbar 
makes  its  way  to  every  Court  in  India,  and  is  cited  as  a  prece- 
dent or  a  grievance  on  the  next  available  occasion,  how  can  we 
possibly  suppose  that  the  establishment  of  a  new  principle  of 
succession  in  a  Hindu  House  will  be  regarded  as  exceptional 
and  as  affecting  that  House  alone  ?  The  Cashmere  dynasty 
rules  a  wealthy  and  powerful  State,  but  the  claim  to  considera- 
tion appears  among  Native  chiefs  to  rest  not  more  on  extent 
of  dominion  than  on  antiquity  and  splendour  of  family  descent. 
How  can  we  deny  to  families  whose  antiquity  inspires  an 
almost  religious  reverence  that  which  we  concede  to  a  dynasty 
whose  origin  is  extremely  modern,  and  viewed,  I  believe,  with 
anything  but  respect  ? 

The  existing  system  of  succession  among  quasi-sovereign 
Hindu  princes  in  India  has  the  advantage  of  extreme  simpli- 
city. The  right  of  adoption  in  default  of  heirs  of  the  body- 
now  firmly  secured  to  them — amounts  to  a  power  vested  in 
the  reigning  chief  of  selecting  a  successor  from  among  his  col- 
laterals. To  take  a  very  famous  illustration,  it  is  the  rule  of 
succession  which  practically  obtained  in  the  early  Roman 
Empire,  though  in  that  case  the  power  of  selection  could  be 
exercised  not  only  by  adoption  but  by  will.  If  we  once 
depart  from  this  simple  principle,  I  own  that,  from  a  purely 
legal  point  of  view,  I  cannot  look  forward  without  dismay  to 
the  sea  of  doubt  on  which  we  shall  be  launched.  What  is 
the  rule  of  succession  to  a  Hindu  sovereignty  among  un- 
selected  collaterals  ?  The  answer  is  that  nobody  knows.  Not 
only  does  the  general  Hindu  Law  of  Succession  to  private 
property  give  us  little  help  in  solving  the  question,  but  it 
rather  confounds  our  ideas,  because  (putting  aside  some  unim- 
portant exceptions)  it  is  essentially  a  system  of  class-succes- 


CASHMERE  :    SUCCESSION  393 

sion  excluding  primogeniture.  In  successions  to  a  Hindu 
sovereignty  does  the  collateral  who  is  nearer  to  the  founder  of 
the  House  exclude  the  collateral  who  is  nearer  to  the  last 
reigning  chief?  Does  a  nearer  collateral  connected  through 
females  only  exclude  a  more  remote  collateral  connected 
through  males?  A  man  may  of  course  have  an  opinion  on 
these  two  points  founded  on  supposed  analogies  in  Hindu  or 
even  in  English  law  ;  but  in  truth  nobody  can  give  a  reply 
with  confidence  or  certainty.  It  happens,  however,  that  out 
of  the  two  questions  above  suggested  grew  the  largest  and 
bloodiest  wars,  or  rather  series  of  wars,  in  which  the  English 
monarchy  has  been  involved.  The  fact  is  that  nothing  is 
more  arbitrary  in  itself,  and  nothing  has  been  more  gradually 
settled,  than  the  system  of  collateral  succession  to  European 
sovereignties  ;  and  it  is  no  slight  thing  to  propound  the  same 
set  of  problems  for  decision  in  India. 

I  am  informed  that  in  Oudh,  where  the  property  of 
certain  families  claiming  a  '  gaddi,'  ^  and  probably  older  than 
most  of  the  reigning  Houses  of  India,  descends  indivisibly, 
there  is  no  pretence  whatever  of  the  existence  of  any  general 
rule  of  collateral  succession  applicable  to  such  a  case,  but 
each  family  professes  to  have  a  complete  set  of  provable 
family  usages  governing  its  own  successions.  It  is  extremely 
improbable  that  the  reigning  Hindu  Houses  can  produce  proof 
of  any  such  customs,  partly  because  of  the  virtual  universality 
of  the  system  of  adoption,  partly  on  account  of  the  recent 
accession  of  several  of  them  to  sovereign  power  and  their 
previous  obscurity. 

It  may  be  said  that  the  British  Government  will  decide 
between  the  conflicting  claims  of  collaterals.  But  unless  it 
be  distinctly  stated  that  no  collateral  is  to  succeed  as  of  right, 
the  promise  to  allow  collateral  succession  will  be  regarded  as 
a  promise  to  respect  the  right  of  collaterals  to  succeed,  and 
each  collateral  will  be  practically  invited  to  make  preparations 
for  pressing  his  due  claims.  I  venture  to  assert,  too,  that,  in 
ninety-nine  cases  out  of  a  hundred,  the  future  British  Govern- 
ment of  India,  having  no  reason  a  priori  for  preferring  one 
collateral  to  another,  will  select  the  one  whom  it  supposes  to 

'  The  seat  of  rank  or  royalty. 


394  MINUTES 

be  legally  entitled  to  succeed,  and  the  question  of  legal  right 
will  be  raised  after  all.  But  if  any  other  candidate  seems  to 
a  portion  of  the  people  to  have  a  better  claim  than  the  nomi- 
nee of  the  British  Government,  what  security  have  we  against 
an  outbreak  of  partizanship  similar  to  that  which,  in  spite  of 
all  the  influence  of  the  British  power,  has  just  plunged  a 
miserable  little  Katak  State  in  war? 

One  very  unfortunate  result  of  diminishing  the  induce- 
ment to  Hmdii  princes  to  adopt  will  be  that  minorities  will 
obviously  become  much  rarer.  An  adopted  successor  is 
almost  invariably  a  child  ;  a  collateral  successor  will  almost 
invariably  be  a  grown  man.  It  seems  to  be  generally 
admitted  that  there  is  no  happier  episode  in  the  modern 
history  of  Native  States  than  the  minority  of  the  chief  The 
British  Government,  temporarily  assuming  the  administration 
in  a  tutelary  capacity,  secures  for  the  young  prince  the  best 
education  available  and  for  the  people  the  best  possible  com- 
bination of  Native  and  British  institutions,  without  exposing 
itself  to  the  suspicion  of  intended  annexation,  and  without 
placing  itself  under  the  temptation  to  go  too  far  in  anglicising 
the  country.  Nobody  denies  that  the  best-governed  Native 
States  owe  their  superiority  to  a  minority  wisely  dealt  with. 

I  cannot  help  believing  that  the  just  claims  of  the  Maha- 
raja of  Cashmere  might  be  met  in  a  simpler  manner.  Advan- 
tage might  be  taken  of  the  policy  so  conspicuously  inaugu- 
rated in  Mysore.  His  attention  might  be  directed  to  what 
has  taken  place  in  Mysore  as  a  proof  of  the  earnest  wish  of 
the  British  Government  to  maintain  Native  States.  And  he 
might  be  assured  in  decided  language  of  the  strong  sense 
which  the  British  Government  entertains  of  the  services  of  his 
family.  Putting  the  two  together,  he  could  scarcely  fail  to 
draw  the  conclusion,  which  would  certainly  be  a  sound  one, 
that  if  he  should  fail  to  adopt,  he  would  be  succeeded  by  one 
of  his  family.  But  the  inconvenience  of  a  precedent  would 
be  avoided. 


RIGHT   TO   CEDE   BY   SANAD  395 

THE  RIGHT  TO    CEDE  BY  SANAD  PORTIONS 
OF  BRITISH  INDIA 

August  i  i,  1868. 

The  point  of  law  discussed  in  the  following  minute  was  first  con- 
sidered by  Mr.  Maine  in  1866,  with  reference  to  the  transfer  of 
certain  villages  to  the  Thakur  of  Bhaunagar.  It  came  before  the 
Judicial  Committee  of  the  Privy  Council  in  Damodar  Gordhan 
V.  Deoraf?i  Kafiji,  L.R.  3  Ind.  App.  102  S.  C.  Bom.  367,  and 
before  the  High  Court  of  Allahabad  in  Lachmi  Narayan  v.  Raja 
Paftab  Singh,  2  All.  i,  and  was  decided  in  accordance  with  the  views 
of  Mr.  Maine.  Mr.  Forsyth's  Cases  and  Opinions  on  Constitutional 
law,  1869,  pp.  182-8,  may  be  referred  to  for  information,  if  not  for 
guidance,  on  the  subject. 

Rather  more  than  a  year  ago,  an  opinion  given  by  the 
Advocate  General  to  a  private  client  attracted  the  attention 
of  Government.  Mr.  Covvie  had  apparently  been  consulted 
on  the  question  whether  a  particular  District  Court  in  British 
India  retained  jurisdiction  over  certain  lands  comprised  in 
territory  which  the  Governor  General  in  Council,  on  behalf  of 
the  Queen,  had  transferred,  or  affected  to  transfer,  by  sanad 
to  the  Nawab  of  Rampur,  to  be  held  by^  him  in  the  same 
way  in  every  respect  in  which  his  patrimonial  dominions  are 
holden.  Mr.  Cowie  advised  that  the  effect  of  the  transfer  by 
sanad  was  merely  to  assign  the  revenues  of  the  territory 
comprised  in  the  sanad  to  the  Nawab,  who  thus  became  in 
respect  of  that  territory  a  jagi'rdar  in  British  India,  and  it 
followed  that  the  constitution  of  the  jagi'r  in  no  respect 
impaired  the  jurisdiction  of  the  British  Court.  The  sanad 
purported  unquestionably^  not  to  create  a  jagir,  but  to 
transfer  territory  in  sovereignty  ;  there  had,  however,  been 
irregularities  in  the  transaction,  which  had  been  animadverted 
upon  by  the  Secretary  of  State,  and  hence  it  was  at  first  sup- 
posed that  the  Advocate  General  considered  some  of  these 
irregularities  to  have  been  so  formidable  as  to  prevent  the 
declared  intention  of  Government  from  taking  effect.  He 
was,  however,  requested  to  state  the  grounds  of  his  opinion, 
for  the  information  of  the  Governor  General  in  Council. 

The  reply  of  Mr.  Cowie  has  been  received,  and  it  proves 
to  be  of  a  much  more  serious  nature  than  had  been  expected. 


39^  MINUTES 

He  waives  all  consideration  of  accidental  irregularity,  and  he 
is  satisfied  to  regard  the  sanad  as  if  it  had  emanated  directly 
from  the  Crown.  He  affirms  that,  even  if  it  had  so  emanated 
and  had  clearly  indicated  an  intention  on  the  part  of  the 
Crown  to  transfer  sovereign  rights,  it  nevertheless  could  not 
have  effected  more  than  a  transfer  of  the  Government  revenue. 
The  Officiating  Secretary,  the  Under-Secretary,  and  the 
Assistant-Secretary  '  have  pointed  out  the  extremely  grave 
consequences  of  this  doctrine.  Many,  if  not  most,  of  the 
rewards  of  loyalty  conferred  since  the  mutinies  on  Native 
Chiefs  have  consisted  in  gifts  of  territory  made  through  the 
instrumentality  of  sanads.  The  portions  of  territory  so 
transferred  have  been  treated  by  the  Chiefs  as  an  accession 
to  their  own  dominions.  They  would  assuredly  regard  with 
extreme  disgust  an  announcement  that  they  had  merely  been 
constituted  donees  of  the  revenue,  and  it  is  probable  that  any 
attempt  to  w^ithdraw  the  instrument  of  gift  and  to  exchange 
it  for  one  of  a  different  character  would  be  viewed  by  them 
with  great  anxiety  and  much  suspicion. 

I  confess  I  do  not  gather  clearly  from  the  Advocate 
General's  opinion  whether  he  questions  the  right  of  Her 
Majesty  to  alienate  portions  of  her  Indian  dominions  in 
favour  of  Native  chiefs,  or  whether  he  simply  denies  that  such 
alienation  can  be  effectually  made  by  means  of  a  sanad. 
While  I  lean  to  the  belief  that  Mr.  Cowie  means  merely  to 
deny  the  latter  proposition,  I  think  it  right  to  say  that,  in  my 
humble  judgment,  the  power  of  the  Crown  to  alienate  portions 
of  Indian  territory  cannot  be  questioned.  Even  as  regards 
dominions  of  Her  Majesty  which  are  not  in  the  peculiar 
position  of  British  India,  it  is  now  too  late  to  deny  that  the 
Crown  may  cede  parts  of  them,  subject  to  the  risk  of  Parlia- 
mentary impeachment  incurred  by  those  who  have  advised 
the  improper  cession.  But,  in  respect  of  Her  Indian  domi- 
nions, I  venture  to  think  that  the  Queen  has  Parliamentary 
sanction  for  any  alienations  of  territory  she  may  think  proper  to 
make.  In  laying  this  down,  I  follow  out  the  line  of  argument 
pursued  in  a  famous  minute  of  the  present  Chief  Justice  of 
Bengal,  which  has  had  great  influence  on  the  public  law  of 

'  In  the  Foreign  Department. 


RIGHT   TO   CEDE   13V   SANAI)  397 

India.  Sir  Barnes  Peacock,  in  contending  that  the  Indian 
Government  did  not  possess  any  inherent  sovereign  rights 
which  entitled  it  to  legislate  for  newly-acquired  territory 
otherwise  than  through  the  legislative  machinery  provided 
by  Parliament,  was  pressed  with  the  question  how  the 
Indian  Government  came  on  his  principles  to  have  the  power 
to  acquire  territor}-.  His  answer  was  that  Parliament,  in 
permitting  the  East  India  Company  through  the  Indian 
Government  to  keep  up  an  army  and  (at  that  time)  a  navy, 
independently  of  the  annual  Mutiny  Acts,  must  be  taken 
to  have  contemplated  war  in  India,  and  the  consequences  of 
war,  among  which  was  acquisition  of  territory.  If,  however, 
this  reasoning  be  sound,  the  consequences  of  unsuccessful 
war,  or  of  wars  of  doubtful  or  balanced  success,  must  be 
deemed  to  have  been  contemplated  by  Parliament  also,  and 
hence  the  Indian  Government  must  be  taken  to  have  the 
power  of  ceding  and  exchanging  territory,  as  well  as  of 
acquiring  it.  So  also,  as  it  appears  to  me,  this  Government 
must  be  regarded  as  having  the  right  of  strengthening  the 
general  political  system  of  India  by  cessions,  transfers,  and 
exchanges  of  territory  in  time  of  peace.  It  does  not  appear 
to  me  reasonable  to  limit  this  right,  as  in  one  sentence  Mr. 
Cowie  would  seem  to  limit  it,  to  arrangements  which  are  the 
immediate  sequel  of  a  state  of  war.  We  assuredly  do  not 
transfer  territory  to  Native  Chiefs  under  any  impression  that 
we  secure  better  government  for  the  people  inhabiting  it.  All 
such  transfers  may  be  said  to  have  more  or  less  relation  to  wars, 
past  or  future.  They  are  either  intended  to  reward  proved 
loyalty,  or  to  render  the  Empire  more  compact  and  stronger 
for  resistance,  if  not  for  aggression.  The  argument  of  Sir 
Barnes  Peacock  which  I  have  cited  appears  to  meet  Mr. 
Cowie's  objections  to  the  creation  of  new  tribunals  and  the 
introduction  of  new  laws  in  the  ceded  territory,  otherwise 
than  by  Parliamentary  legislation.  If  we  have  the  implied 
sanction  of  Parliament  to  the  acquisition  of  territory,  whereby 
the  sphere  of  Indian  legislation  is  enlarged  and  the  power 
obtained  of  establishing  new  tribunals  and  introducing  new 
laws,  it  seems  to  follow  that  we  can  go  through  the  converse 
operation  and  by  cession  of  territory  obliterate  the  courts  and 
laws  which  are  the  creation  of  Indian  legislative  authority. 


398  ]\IINUTES 

As,  however,  I  said  before,  I  incline  to  the  beHef  that  the 
Advocate  General  does  not  intend  to  deny  the  power  of  the 
Crown  to  transfer  portions  of  Indian  territory  in  sovereignty 
or  semi-sovereignty,  but  only  to  deny  the  power  of  effecting 
the  transfer  by  sanad.     I  understand  him  to  maintain  that 
a  treaty  is  indispensably  necessary  for  an  effectual  alienation, 
and  that  a  sanad  is  as  inappropriate  as  would  be,  in   Euro- 
pean international  transactions,  an  English  conveyance  with 
its  multiplied    reference    to  feudal  rules  and  to  the  Statute 
of  Uses.     Now,  a  sanad  is  undoubtedly  the  instrument  by 
which    the    Indian    Government    ordinarily    grants    land    or 
revenue  to  one  of  its  subjects  ;    and   I   quite  admit  that  in  a 
case  where  the  intention  to  alienate  sovereignty  or  to  dispose 
of  revenue    was  doubtful,  Mr.   Cowie's   reasoning   might   be 
entitled  to  weight.     The  sanad,  however,  which  is  before  us, 
clearly  recites  an  intention  to  confer  the  same  rights  in  the 
transferred  territory  which  the  Nawab  enjoys  over  his  inherited 
dominions,  and  hence  Mr.  Cowie  must  be  assumed  to  make 
everything  turn  on  the  employment  of  a  sanad  instead  of  a 
treaty.      It  must  be  recollected,  however,  that  in  international 
law  and  in  the  quasi-international  law  applicable  to   India, 
facts  are  everything,  and  the  fact  seems  to  be  established  by 
the    Secretary's   notes  that  sanads  have    been  about  as  fre- 
quently employed  as  treaties  in  adjusting  and  declaring  the 
relations    of  the    Native   Chiefs   to   the  British  Government. 
It  was  in  fact  the  ordinary  instrument  of  contract,  grant,  or 
cession  used  by  the  Emperors  of  Hindustan,  and  so  it  has 
descended  to  us.     The  most  important  privilege  ever  conceded 
by  the  British  Government  to  Native  princes  — the  unqualified 
right  of  adoption — is  solely  secured   by  sanad,  and  parts  ot 
the  territories  even  of  chiefs  so  considerable  as. the  Maharaja 
of  Patiala,   are  held  under  no  other    instrument.      It  would 
seem,  too,  that  sanads  are  not  necessarily  unilateral.     They 
often  impose  on  the  recipient  obligations  which  he  is  taken  to 
have  assented  to  through  the  act  of  acceptance.    They  appear 
in  fact  to  have  no  distinctive  peculiarity  except  that  they  are 
couched  in  the  tone  of  a  superior  addressing  an  inferior.  .  .  . 
So  far,  however,  from  being   anomalous,  the  assumption  of 
superiority  in   a   sanad  is  highly  appropriate  and  natural  in 


RIGHT   TO   CEDE    BV    SANAD  399 

India  ;  and  I  am  convinced  that  examples  of  a  similar  as- 
sumption having  become  a  common  form  might  be  produced 
in  Europe,  if  the  instruments  were  examined  to  which  the 
quondam  Emperors  of  Germany  were  parties. 

I  venture,  however,  to   think    that    the    doctrine    of   the 
extreme  importance  of  the  distinction  between  a  treaty  and 
a  sanad  betrays   a   deeper    misapprehension.       If    European 
principles  are  to  be  applied  to  the  interpretation   of  the  rela- 
tions between  the  Indian  Government  and  the  Native  Chiefs, 
they  must  rather  be  the  principles  of  the  law  of  nations  than 
those    of    English    municipal    law.     Now,    while    it    is    very 
natural  in  an  English  lawyer,  who  is  accustomed   to   rights 
and  duties  flowing  directly  from  conveyances,  to  attach  the 
greatest    importance    to   their    form,  it  cannot   be   said  that 
international    law  attributes  any  such   importance  to    docu- 
ments.     International  law  has  '  modes  of  international  acqui- 
sition '  known  to  itself,  which  are  set  forth   at  length  in   the 
text-books  (for    instance,  Phillimore,  vol.  i.    235-315);    but, 
following  Roman  law,  it  regards  documents,  not  as  modes  of 
acquisition,    but  as   evidence   of  acquisition    according    to    a 
particular  mode.     It  is  not,  I   think,  presumptuous  to  affirm 
that   (though  the    expression    may   sometimes    be    found    in 
writers  of  some  authority)  it  is  in  strictness  incorrect  to  say 
that  territory  is  acquired  by  treaty.     By  a  treaty  the  high 
contracting  parties  may  bind  themselves  to  effect  or  suffer  an 
acquisition  of  territory  after  one  of  the  modes  known  to  public 
law  ;    or,  again,  a  treaty   may   furnish   irrefragable   evidence 
that  such  an  acquisition  has  taken   place,  or  it  may  supply 
binding  admissions  of  the  fact.     But  acquisition  or  alienation 
cannot  be  said  to  be  effected   by  the  treaty  itself  or  by  any 
other  document.     From  these  principles  appears  to  flow  the 
broad  doctrine  of  Wheaton  that  the  form  of  a  treaty  is  im- 
material, and    it  would   seem  to   be  a  legitimate  conclusion 
from  them  that  there  was  nothing  inappropriate  in  the  sanad 
given  to  the  Nawab  of  Rampur.     Strictly  speaking,  the  aliena- 
tion was  effected  by  the  delivery  of  the  territory  to  the  Nawab. 
The  sanad,  reciting  the  intentions  of  the  Crown,  supplied  what 
in  Roman  and  international  law  is  known  as  thejiista  causa. 
I  am  compelled,  therefore,  to  dissent   from  the  Advocate 


400 


MINUTES 


General's  opinion  that  such  sanads  as  that  given  to  the 
Nawab  of  Rampur  confer  merely  a  right  to  the  revenue  of 
the  territories  comprised  in  them,  even  when  emanating  from 
the  proper  authority.  I  think  they  effectually  confer  over  that 
territory  such  measure  of  sovereignty  as  they  purport  to  confer. 
But  Mr.  Cowie  is  the  constituted  legal  adviser  of  this  Govern- 
ment, and  hence  the  case,  which  is  of  the  greatest  importance, 
must  go  home  for  the  opinion  of  the  law-officers  of  the  Crown. 

TRIAL  OF  EUROPEAN  BRITISH  SUBJECTS   UNDER 
JURISDICTION  ASSUMED  BY  NATIVE   STATES 

April  19,  1869. 

The  legal  question  in  this  case  is  quite  distinct  from  the 
political  question,  and  altogether  subordinate  to  it. 

I  entertain  no  doubt  whatever  that  the  Travancore  State, 
so  Ion"-  as  in  any  sense  it  is  not  part  of  British  India,  has 
jurisdiction  theoretically  to  try  European  British  subjects  for 
offences  committed  within  its  boundaries.  The  notification 
of  January  10,  1867,  was  issued  under  the  authority  of  an 
Act  of  Parliament,'  but  the  statute  and  the  notification  (the 
issue  of  which  was  a  quasi-legislative  act)  no  more  take  away 
the  inherent  jurisdiction  of  Travancore  than  the  common  and 
statute  law  of  England,  which  permit  the  trial  by  English 
courts  of  Englishmen  committing  crimes  abroad,  take  away 
the  inherent  right  of  France  or  Prussia  to  try  Englishmen  by 
their  own  courts  for  offences  committed  within  their  jurisdic- 
tion. I  do  not  think  that  Mr.  J.  D.  Mayne,  of  Madras,  has 
over-stated  the  truth  in  laying  down  that  Parliament  has  not 
the  power  to  legislate  away  the  jurisdiction  of  Travancore. 
What  Parliament  can  do,  if  it  chooses,  is  to.  compel  the 
executive  to  annex  foreign  territory  to  the  Queen's  dominions 
or  to  put  pressure  on  the  foreign  state  and  force  it  to  abstain 
from  trying  British  subjects  — and,  of  course,  in  the  case  of  a 
Native  state,  this  pressure  would  be  irresistible. 

But  the  political  question  is  of  a  very  different  nature. 

'  28  Vic.  c.    17,  s.   3.     The  notifi-  of  Her  Majesty,  being  Christians,  resi- 

cation  under  which  the  High  Court  at  dent  in   Travancore   is   dated  Aug.  9, 

Madras   now  exercises   criminal  juris-  1875,  No.  "QJ- 
diction  over  European  British  subjects 


RIGHT   OF    NATIVE   STATES   TO   TRY   EUROPEANS      4OI 

There  is  nothinij  to  prevent  our  regarding  the  statute  and  the 
notification  as  intimations  by  Parliament  and  the  Government 
of  India  of  an  opinion  that  Native  States  ought  not  to  try 
European  British  subjects.  Perhaps,  however,  it  would  be 
more  correct  to  say  that  the  statute  was  passed  and  the 
notification  issued  in  the  belief  that  Native  States  did  not,  as 
a  matter  of  fact,  try  Europeans  or  claim  to  exercise  their 
inherent  jurisdiction  over  them.  The  simple  question  is 
whether  they  shall  be  allowed  to  do  so.  I  readily  admit 
that,  if  any  state  might  be  allowed  to  exercise  this  power  it 
would  be  Travancore.  But  an  extreme  case  must  be  tested 
by  an  extreme  case.  Can  we  afford  to  permit  even  the 
Travancore  authorities  to  execute  a  capital  sentence  on  an 
Englishman  .''  As  regards  the  great  majority  of  Native  States, 
the  criminal  system  is  so  rude  that  the  public  opinion  of 
Englishmen,  whether  here  or  at  home,  would  never  permit 
its  being  put  in  force  against  one  of  themselves.  There  is, 
moreover,  as  it  seems  to  me,  one  fatal  objection  to  allowing 
any  Native  state  to  try  and  punish  Europeans.  Not  one  of 
them — not  even  Travancore,  I  suspect — has  a  prison  in  which 
a  European  could  work  out  his  punishment.  Thus  the 
sentence  on  a  European  would  bear  no  proportion  to  the 
quality  of  his  offence. 

My  own  view  is  that  the  Government  of  Madras  should 
be  told  to  intimate  to  Travancore  that,  without  denying  its 
abstract  right  to  try  Europeans,  or  questioning  the  merits  of 
the  judicial  system  there  established,  we  think  there  are  many 
reasons  why  Europeans  charged  with  offences  should  be  sent 
to  Madras  for  trial.  We  might  point  out  the  great  importance 
of  trying  Englishmen  by  a  procedure  to  which  their  country- 
men are  accustomed  and  with  which  they  are  satisfied,  and 
we  might  add  that  this  consideration  has  up  to  this  time 
prevented  our  giving  our  own  Mufassal  courts  jurisdiction 
over  them.  We  might  express  a  doubt  whether  sentences  of 
any  gravity  on  Europeans  could  be  worked  out  in  Travancore 
prisons,  the  British  Government  in  its  own  dominions  having 
to  move  them  to  selected  places  of  confinement.  But  we 
might  promise  every  aid  and  the  utmost  activity  in  bringing 
offenders  to  justice. 

D  D 


402 


MINUTES 


SELECTION  AND    TRAINING    OF  CANDIDATES 
FOR    THE   INDIAN  CIVIL   SERVICE 

November  12,  1875. 

I  HAVE  gone  through  this  mass  of  papers  in  the  order  in 
which  they  are  put  together,  that  is,  with  the  minutes  of  the 
members  of  the  Government  of  India  at  the  end,  and  I  find 
that  my  results  as  to  the  preponderance  of  opinion  on  certain 
points  tally  very  closely  with  those  of  the  Viceroy.  For  the 
purpose,  then,  of  judging  towards  what  conclusions  the  gentle- 
men consulted  in  India  incline,  it  will  be  enough  to  consult 
the  appendix  to  Lord  Northbrook's  minute. 

There  seems  to  me  to  be  a  very  decided  preponderance  of 
opinion  on  two  points  : — 

1.  Against  disturbing  the  system  of  open  competition  by 
which  candidates  for  the  covenanted  Civil  Service  are  selected, 
and  even  against  any  serious  modification  of  the  examination. 
The  Viceroy,  however,  favours  the  proposal  to  add  jurispru- 
dence and  political  economy  to  the  subjects  in  which  the 
competitors  are  examined. 

2.  In  favour  of  calling  in  the  universities  to  aid  in  the 
training  of  candidates  for  the  Civil  Service,  either  before  or 
after  selection. 

The  virtual  unanimity  on  the  first  point  is,  no  doubt, 
owing  in  part  to  an  assumption  that  the  competitive  system 
is  not  under  any  circumstances  likely  to  be  disturbed,  and  in 
part  also  to  the  large  proportion  which  civilians  selected  by 
competition  now  bear  to  the  rest  of  the  Civil  Service.  Those, 
however,  whom  the  system  inspires  with  most  distrust  would 
probably  allow  that  it  must  be  maintained,  in  the  absence  of 
any  strong  opinion  in  India  unfavourable  to  its  working.  As 
regards  a  certain  class  of  imputations  which  have  been 
directed  against  it,  I  venture  to  recommend  careful  attention 
to  notes  E,  G,  and  H,  printed  at  pages  35  and  36  of  the 
correspondence  between  the  Secretary  of  State  and  the  Civil 
Service  Commissioners.  It  may  be  observed,  that  the  table 
contained  in  note  E,  which  classifies  the  candidates  of  fifteen 
years,  does  not  probably  express  the  whole  truth.  There  is 
reason  to  believe  that  the  number  of  candidates  answering  to 


CANDIDATES    FOR   THE    INDIAN    CIVIL   SERVICE        403 

the  higher  classes  in  the  table  is  progressively  increasing,  and 
the  number  of  those  belonging  to  the  lower  progressively 
diminishing,  the  latter  having  been  at  one  time  in  much  greater 
proportion  than  at  present.  This  appears  to  be  a  consequence 
of  the  fact  that  preparation  for  the  competitive  examination  is 
extremely  costly,  and,  like  most  things  in  our  day,  is  stea- 
dily becoming  costlier.  It  may  be  remembered  that  a  late 
colleague  of  ours,  Sir  George  Campbell,  condemned  the  com- 
petitive system,  not  on  the  ground  ordinarily  taken,  that  it 
favoured  the  lower  classes  at  the  expense  of  the  higher,  but 
on  the  exactly  contrary  ground  that  it  tended  to  make  the 
Indian  Civil  Service  a  monopoly  of  the  rich.  Whatever  be  the 
force  of  the  objection,  the  assertion  on  which  it  rests  seems 
to  me  to  be  not  so  very  far  from  the  truth. 

On  the  second  point,  the  manner  in  which  advantage 
should  be  taken  of  the  desire  of  the  universities  to  share  in 
the  education  of  our  candidates,  I  regret  to  say  that  I  do  not 
agree  with  the  Viceroy.  Lord  Northbrook  has  evidently 
bestowed  much  thought  and  care  on  the  subject,  and  I  differ 
from  him  with  unfeigned  hesitation.  But  I  have  had  a  long 
experience  of  both  the  older  universities,  and  some  experience 
of  the  present  mode  of  training  the  selected  candidates  ;  and 
there  may,  besides,  be  some  convenience  to  the  Secretary  of 
State  and  the  Council  to  have  the  only  important  issue  which 
they  have  to  decide  raised  with  considerable  distinctness. 

Lord  Northbrook  proposes  that  the  earliest  age  at  which 
a  candidate  should  be  allowed  to  compete  should  be  19,  instead 
of  17  as  at  present,  and  that  the  latest  age  should  be  22, 
mstead  of  21  as  at  present.  He  would  send  all  the  selected 
candidates  to  a  university  for  a  single  year,  leaving  them 
(para.  25)  to  choose  the  university  to  which  they  are  to  be 
attached  provided  that  it  satisfied  certain  conditions,  and 
allowing  this  university  to  test  their  progress  in  their  special 
studies.  The  curtailment  of  the  period  now  given  to  special 
study  he  would  apparently  compensate  by  transferring  the 
subjects  of  jurisprudence  and  political  economy  from  the 
special  to  the  general  or  competitive  examination.  The  pro- 
posal wears  a  very  strong  resemblance  to  that  of  Mr.  Jowett, 
the  Master  of  Balliol. 


404  MINUTES 

On  the  other  hand,  I  would  lower  the  maximum  age  of 
competition  from  21  to  20,  and  I  frankly  own  I  would  lower 
it  to  19,  if  I  had  my  own  way.  I  would  leave  the  minimum  age 
at  17,  as  at  present.  I  would  either  compel  the  selected  can- 
didates, or  offer  them  strong  inducements,  to  proceed  after 
selection  to  universities  chosen  by  themselves,  under  the  same 
conditions  as  those  suggested  by  the  Viceroy.  I  would,  how- 
ever, send  them  thither  for  two  years  at  least,  and  not  for  one. 
For  the  present,  at  all  events,  I  would  keep  the  examinations 
of  the  selected  candidates  in  the  hands  of  the  Civil  Service 
Commissioners,  under  arrangement  with  the  Secretary  of 
State ;  but  I  would  somewhat  modify  the  subjects  of  exami- 
nation, and  I  would  fix  the  times  of  examination  at  such 
periods  of  the  year  as  would  not  interfere  with  residence  at 
the  chief  universities.  My  proposals  do  not  widely  differ 
from  those  of  the  Dean  of  Christ  Church  and  of  the  Committee 
of  Council  at  Oxford. 

I  proceed  to  give  my  reasons  for  dissenting  from  the 
proposals  of  Lord  Northbrook,  and  for  advancing  my  own. 

I  must  confess  I  should  regard  with  some  dismay  a  system 
of  keeping  many  hundreds,  and  perhaps  thousands,  of  young 
Englishmen,  the  ablest  of  whom  are  intended  for  the  sternest 
practical  duties,  and  the  most  active  life,  working  up  to  22  at 
subjects  which  do  not  directly  contribute  to  success  or  efficiency 
in  the  career  which  they  are  attempting  to  enter,  or  indeed  in 
any  career  except  a  few  of  an  exceptional  order.  Such  a 
system,  as  it  seems  to  me,  could  only  be  justified  by  some 
such  unquestioning  belief  in  the  value  of  the  studies  prescribed 
for  the  competitive  examination  as  existed  during  the  Middle 
Ages  in  the  value  of  the  Trivium  and  Quadrivium.  Lord 
Macaulay  and  his  colleagues  assuredly  held  no  such  opinion 
of  these  studies  :  still  they  expressly  defended  their  scheme, 
not  on  the  ground  that  the  subjects  contemplated  for  the 
competitive  examination  were  absolutely  the  best,  but  on  the 
ground  that  they  were,  as  a  matter  of  fact,  studied  by  the  best, 
the  intellectually  ablest,  young  Englishmen.  If  these  subjects 
were  alleged  to  be  chosen  not  for  their  historical  place  in 
English  education,  but  for  their  absolute  intrinsic  merits,  the 
choice  would    be   open  to  much  criticism.     Though  it  be  a 


CANDIDATES   FOR   THE    INDIAN    CIVIL   SERVICE        405 

vulgar  and  ignorant  prejudice  that  Greek  and  Latin  are  use- 
less, it  is  not  the  less  certain  that  much  of  their  hold  on  our 
universities,  colleges,  and  schools  is  a  '  survival '  from  the 
fifteenth  century.  Nobody  nowadays,  I  presume,  if  he  were 
arranging  the  course  of  study  in  the  Universities  of  Cambridge 
or  Dublin  for  the  first  time,  would  give  quite  the  same  impor- 
tance as  at  present  to  pure  mathematics,  or  would  allow 
mathematical  studies  to  be  so  much  divorced  from  study  of 
the  operations  of  nature.  Moral  and  mental  philosophy  are 
expressly  made  subjects  of  examination  because  they  are  said 
to  take,  at  the  Scottish  Universities,  the  place  of  Greek,  Latin, 
and  mathematics  at  the  English  ;  yet  they  are  full  of  disputed 
and  unsolved  problems,  and,  as  commonly  treated,  abound 
with  reasoning  which  is  far  from  rigorous.  For  myself,  too, 
I  must  confess  to  the  most  profound  distrust  of  an  examina- 
tion in  natural  science,  which  tests  knowledge  solely  by  the 
reproduction  of  statements  found  in  books.  The  truth  is, 
that  any  system  of  keeping  young  men  working  at  '  general,' 
as  distinguished  from  '  special,'  studies  up  to  22  is  only  justifi- 
able when  the  '  general '  studies  are  really  '  special,'  as  is  the 
case  with  the  comparatively  few  who  will  carry  them  further 
by  discovery,  or  in  the  case  of  the  not  inconsiderable  class  at 
Oxford  and  Cambridge,  who  will  make  professional  use  of 
them  by  teaching  them  to  others.  It  seems  to  me  that  this 
is  clearly  recognised  by  the  universities  themselves,  since  the 
manifest  tendency  there  is  to  specialise  study.  At  Oxford,  a 
man  who  has  passed  the  examination  called  '  Moderations,' 
which  he  may  do  no  long  time  after  entrance,  may  practically 
take  leave  of  pure  Greek  and  Latin  scholarship,  and  devote 
himself  to  philosophy,  mathematics,  natural  science,  history, 
or  jurisprudence.  At  Cambridge,  the  questions  now  put  to 
candidates  for  honours  plainly  favour  special  knowledge,  and 
a  number  of  new  '  Triposes,'  implying  examination  in  special 
subjects,  have  sprung  up  by  the  side  of  the  older  schools. 

It  has  probably  been  thought  that  the  addition  of  juris- 
prudence and  political  economy  to  the  subjects  of  the  com- 
petitive examination  would  give  it  a  more  practical  charac- 
ter, and  thus  to  some  extent  meet  these  objections.  I  am 
afraid    I   cannot  admit  this.      There  are  several   statements 


406  MINUTES 

made  about  jurisprudence  in  these  papers  which  I  should  call 
extraordinary,  if  I  did  not  know  that  they  are  sometimes 
heard  even  from  lawyers.  It  seems  to  be  supposed  that  there 
exists  a  great  abstract  science,  called  jurisprudence,  which 
will  enable  those  instructed  in  it  to  solve  actual  legal  problems 
without  the  trouble  of  referring  to  positive  enactments  or  laws. 
Assuredly  there  is  no  such  science.  What  is  true,  is  that 
the  rules  and  principles  of  every  legal  system  may  be  stated 
in  a  simpler  and  more  general  form  than  that  which  they 
take  when  dispersed  over  judgments  and  text-books,  and  pro- 
bably every  really  eminent  lawyer  effects  some  such  generali- 
sation and  simplification  for  himself  If  law,  put  in  this  form, 
be  called  jurisprudence,  undoubtedly  it  helps  to  solve  legal 
questions,  and  there  would  be  great  advantage  in  being 
familiar  with  it  at  starting.  But  then  it  happens  that  the 
Indian  codes  (apart  from  the  codes  of  procedure)  corre.spond 
to  jurisprudence  in  this  sense  about  as  closely  as  any  body  of 
rules  could  do.  They  are  law,  stated  as  generally  and  simply 
as  is  consistent  with  practical  usefulness.  Nobody,  however, 
proposes  that  the  codes  should  enter  into  the  competitive 
examination,  and  indeed  in  some  passages  of  these  papers 
they  are  contrasted  with  jurisprudence.  But,  whatever  this 
last  word  as  used  in  these  papers  may  mean  (and  it  may  bear 
several  meanings  and  may  indicate  several  interesting  branches 
of  study),  it  will  not  support  the  argument  of  the  writers 
unless  it  be  taken  as  equivalent  to  codified  law. 

I  do  not  deny  that  political  economy,  as  set  forth  in  the 
ordinary  manuals,  has  sufficient  precision  to  be  a  subject  for 
examination.  ^But  this  precision  is  obtained  in  great  measure 
by  a  series  of  assumptions  which  are  not  by  any  means  abso- 
lutely true  of  India.  Political  economy,  as  ordinarily  under- 
stood, takes  for  granted  that  private  or  individual  property 
exists  as  an  institution,  that  its  forms  are  perfectly  distinct, 
and  that  its  actual  distribution  has  been  determined  by  causes 
of  so  old  a  date  that  no  inquiry  into  their  propriety  ought  to 
be  permitted.  But,  over  much  of  India,  individual  property 
is  still  imperfectly  disentangled  from  common  property,  its 
forms  are  often  extremely  indistinct,  even  to  the  most  careful 
observer,  and  its  distribution  over  whole  provinces  is  due  to 


CANDIDATES   FOR   THE    INDIAN    CIVIL   SERVICE        407 

measures  taken  not  a  hundred  years  ago,  in  some  provinces 
not  twenty  years  ago.  In  fact,  political  economy,  if  studied 
by  itself,  is  a  source  rather  of  confusion  of  mind  than  of  clear- 
ness of  thought  in  Indian  officials,  and  it  is  one  great  merit 
of  the  special  studies  insisted  upon  by  the  Civil  Service  Com- 
missioners, that  they  include  not  only  political  economy,  but 
the  history  of  tenure  as  established  by  the  comparative 
method  and  a  part  of  what  the  writer  of  an  interesting  paper 
in  the  collection  calls  '  Archi-Sociology.'  {See  Mr.  Ibbetson's 
paper  of  August  4,  1875.) 

The  plan  of  Lord  Northbrook  and  of  the  Master  of  Balliol 
is  avowedly  intended  to  facilitate  the  entrance  of  university 
men  into  the  Indian  Civil  Service,  and  perhaps  an  enemy 
might  describe  it  as  a  proposal  to  sacrifice  all  other  considera- 
tions to  the  interests  of  the  universities.  I  believe  that,  if  it 
succeeded,  it  would  at  most  come  to  the  universities  sending 
us  their  second-best  men,  keeping  their  best  for  themselves. 
But  I  strongly  suspect  that  it  would  not  succeed,  and  that  the 
number  of  university  men  entering  the  service  would  be 
sm.aller  than  ever.  It  must  be  remembered  that  by  advancing 
the  maximum  age  for  competition,  you  enormously  intensify 
its  keenness.  The  man  who  competes  in  this  examination  at 
22  would  have  a  terrible  stake  on  his  own  running.  Nothing 
could  be  more  pitiable  than  his  position  if  he  failed,  for  he 
would  be  unfit  and  too  old  for  nearly  any  other  occupation 
or  profession.  I  think  that  the  competitors  under  such  cir- 
cumstances would  throw  aside  every  weight,  and  would  not 
allow  themselves  to  be  distracted  by  the  requirements  of  a 
university  course,  which  are  not  at  all  necessarily  coincident 
with  the  training  most  likely  to  secure  success  in  competition. 
No  doubt  they  might  be  forced  into  the  universities,  but, 
apart  from  compulsion,  I  think  it  probable  that  they  would 
keep  aloof  from  them  even  more  commonly  than  at  present. 

Let  me  add,  that  we  ought  not  to  leave  the  defeated  com- 
petitors in  these  examinations  altogether  out  of  account.  Their 
number  increases  every  year,  and  already  the  hopelessness  of 
their  position  is  severely  felt  by  a  host  of  families.  But  every 
year  by  which  the  maximum  age  of  competition  is  advanced 
necessarily  adds  to  the  number  of  the  unsuccessful,  and  the 


408  MINUTES 

postponement  of  the  minimum  limit  of  age  from  17  to  19 
would  make  matters  worse,  since  the  competitors  lose  the 
opportunity  of  essaying  their  powers  at  an  early  age,  and  of 
declining  the  contest  in  future  if  they  find  themselves  unequal 
to  its  strain. 

On  the  proposal  to  send  the  successful  non-university 
candidates  to  the  universities  for  a  single  year,  it  seems  to  me 
sufficient  to  observe  that  the  universities  would  probably 
decline  to  receive  them  for  so  short  a  period.  No  doubt  the 
course  of  two  years  would  be  regarded  at  Oxford  and  Cam- 
bridge as  somewhat  unduly  short.  If  it  were  necessary  to 
argue  the  point,  I  believe  I  could  show  that  no  studies  worth 
mentioning  could  be  prosecuted  in  a  twelvemonth,  nor  could 
proficiency  in  them  be  satisfactorily  tested. 

The  plan  I  venture  to  submit  rests  on  a  different  view  of 
the  competitive  examination  from  that  which  has  apparently 
been  adopted  by  Lord  Northbrook  and  Mr.  Jowett.  I 
imagine  that  they  compare  selection  for  the  Indian  Civil 
Service  to  a  college  fellowship  obtained  soon  after  a  university 
degree.  It  seems  to  be  supposed  that  a  certain  number  of 
university  men,  after  graduating,  will  present  themselves  at  our 
competitive  examination  in  lieu  of  competing  for  a  fellowship 
or  after  competing  and  failing.  I  think  there  is  a  general 
feeling  that  the  lateness  of  the  period  at  which  fellowships  are 
obtained  is  a  very  serious  drawback  on  their  value,  even  to 
those  who  enter  less  active  professions  than  the  Indian  Civil 
Service  ;  but,  apart  from  that,  if  academical  analogies  are  to 
be  followed,  I  submit  that  the  truest  analogy  is  not  between 
selection  for  the  service  and  success  in  a  fellowship  exami- 
nation, but  between  selection  for  the  service  and  success  in  an 
examination  for  an  open  scholarship  or  exhibition.  It  is  by 
means  of  scholarships  that  the  universities  retained  their  hold 
on  the  youthful  ability  of  the  country  even  in  the  darkest 
times,  and  they  are  prizes  appropriate  to  a  period  of  life  when 
it  is  even  more  important  to  have  proof  of  industrious  habits, 
of  clearness  of  head,  and  of  quickness  of  apprehension,  than  of 
the  possession  of  special  or  even  of  useful  knowledge. 

The  papers  received  from  India  leave  no  doubt  on  my 
mind  that  the  candidates  for  the  service,  once  elected,  should 


CANDIDATES   FOR   THE    INDIAN    CIVIL   SERVICE        409 

be  placed  under  new  conditions  during  the  remainder  of  their 
stay  in  this  country'.  A  Hvely  picture  of  the  Hfc  which  they 
are  now  compelled  to  lead  may  be  found  in  Mr.  Risley's  letter 
of  August  10,  187s,  addressed  to  the  Government  of  Bengal, 
paras.  14  and  15  ;  and  such  statements  of  fact  are  worth  a 
bushel  of  opinions.  The  idea  of  collecting  the  selected  candi- 
dates in  a  single  college,  like  Cooper's  Hill,  does  not,  it  will  be 
seen,  command  any  great  amount  of  favour,  much  less  favour, 
indeed,  than  might  have  been  expected  from  the  affectionate 
recollections  of  Haileybury  which  have  not  quite  died  out  in 
India.  Probably  it  will  be  admitted  that,  with  the  older 
universities  willing  and  even  eager  to  receive  our  young  civi- 
lians, only  the  very  strongest  reasons  would  justifx-  us  in 
repeating  on  a  larger  scale  the  costly  experiment  of  Cooper's 
Hill,  and  no  such  reasons  seem  to  me  to  have  been  adduced. 
The  objections,  again,  to  confining  the  candidates  to  a  single 
college  at  Oxford  or  Cambridge  are  very  formidable.  Such  a 
college  would  rapidly  acquire  a  special  tone  of  its  own,  and 
thus  some  of  the  best  indirect  effects  which  are  promised  from 
residence  at  the  universities  would  be  sacrificed.  Those  who 
know  Oxford  and  Cambridge  best  have  no  fear  that  the  can- 
didates, if  dispersed  over  several  colleges,  will  see  too  little 
of  one  another  ;  their  studies  and  objects  will  be  so  distinct 
from  those  of  other  undergraduates  that  they  will  probably 
flock  together  too  much  rather  than  too  little. 

I  suggest,  then,  that  we  should  adopt  the  proposal  which 
was  put  to  the  Civil  Service  Commissioners,  and  which,  of  all 
those  hinted  at  in  the  letter  from  this  office,  was  received  by 
them  with  least  disfavour.  It  would,  in  that  case,  be  announced 
that,  after  a  certain  date,  the  allowance  made  by  the  Secretary 
of  State  to  the  selected  candidates  would  cease,  but  that  every 
candidate  entering  a  university  which  satisfied  certain  condi- 
tions would  be  regarded  as  the  holder  of  a  scholarship  of  150/. 
a  year  so  long  as  he  resided  there.  Lord  Northbrook  suggests 
that  the  university  chosen  should  always  include  colleges,  but, 
on  the  whole,  I  prefer  the  more  general  words  employed  in 
the  letter  to  the  Civil  Service  Commissioners — '  Some  univer- 
sity at  which  moral  responsibility  for  the  conduct  of  the 
students  is  undertaken,  and  rules  of  discipline  enforced.'      I 


41 0  MINUTES 

suggest  this  change  in  the  training  not  only  as  being  in  itself 
good,  but  as  involving  the  least  disturbance  of  existing 
arrangements,  and  as  satisfying  the  greatest  possible  number 
of  claims  to  share  in  the  supervision  of  our  selected  candi- 
dates. 

If  the  selected  candidates  are  only  to  be  sent  to  an 
university  for  a  single  year — a  proposal,  as  I  said  before,  which 
I  think  the  chief  universities  would  decline — the  nature  of 
their  studies  during  that  year,  and  the  tests  applied  to  their 
proficiency,  do  not  seem  to  me  of  any  great  importance.  But 
if  their  residence  is  prolonged  during  two  years  or  more,  I 
think  it  essential  that  they  should  be  subjected  to  much  the 
same  searching  periodical  examinations  as  at  present.  The 
old  complaints  of  Oxford  and  Cambridge,  to  which  the 
majority  of  our  candidates  may  be  expected  to  go,  that  they 
are  places  of  luxury  and  prodigality,  have  recently  been  heard 
in  Parliament,  and  they  may  be  read  in  these  papers.  What- 
ever ground  there  may  be,  or  may  have  been,  for  such 
complaints,  assuredly  they  could  never  be  justly  made  of  the 
working  or  reading  class  of  undergraduates.  At  the  univer- 
sities, as  elsewhere,  idleness,  not  industry,  has  always  been  the 
mother  of  mischief.  It  seems  to  me  essential  we  should  have 
security  that  the  selected  candidates  work  fairly  hard  during 
their  years  of  probation.  Now  I  must  frankly  state  that  I 
doubt  our  having  this  security  even  from  the  chief  English 
universities  (for  the  present  at  all  events)  if  we  trust  them  to 
apply  their  own  tests  to  the  progress  of  our  candidates.  They 
have  a  deserved  reputation  for  the  stringency  and  impartiality 
of  their  examinations  in  the  older  branches  of  study,  which  are 
controlled  by  a  considerable  mass  of  public  opinion  and  by 
old  traditional  standards.  There  would  not  be  the  same 
ground  for  confidence  in  the  tests  applied  to  the  studies  of  a 
new  class,  somewhat  outside  the  rest  of  the  university,  who 
would  very  generally  be  examined,  like  the  young  men  at 
Haile)'bury,  by  the  very  same  persons  who  had  taught  them 
in  lecture  rooms.  On  the  other  hand,  if  I  may  judge  from 
my  own  experience,  the  periodical  examinations  of  the  Civil 
Service  Commissioners  are  as  searching  as  any  in  the  country. 

Moreover,  if  each  university  were  permitted  to  examine 


CANDIDATES   FOR   THE    INDIAN    CIVIL   SERVICE        4II 

the  selected  candidates  attached  to  it,  not  only  would  there 
be  danger  of  considerable  variability  in  the  tests  employed, 
but  there  would  be  great  waste  of  machinery,  which  cannot  be 
very  cheap  if  it  is  to  be  very  efficient.  Not  only  Oxford  and 
Cambridge,  but  the  University  of  Dublin  and  the  Scottish  Uni- 
versities, must  have  each  a  staff  of  special  examiners,  and  the 
Secretary  of  State,  through  the  Civil  Service  Commissioners, 
must  keep  up  a  staff  of  his  own,  for  the  sake  of  the  candidates 
who  cannot  be  induced  to  select  any  university,  possibly 
because  the}-  prefer  to  remain  under  parental  control. 

The  periodical  examinations  are  now  held  in  October  and 
November  and  in  April  and  May,  of  all  months  the  most 
inconvenient  for  a  resident  at  Oxford  or  Cambridge.  There 
would  be  no  difficulty  whatever  about  holding  them  in  July 
and  at  the  end  of  December  or  beginning  of  January,  in 
which  case  they  would  not  interfere  in  any  way  with  univer- 
sity residence.  Further,  I  think  that  the  obligation  of  attend- 
ing courts  of  justice,  drawing  with  it  the  opportunities  of 
occasional  release  from  university  discipline,  might  be  con- 
siderably relaxed.  A  certain  amount  of  attendance  is  likely 
to  be  extremely  useful,  but  the  amount  actually  required 
seems  to  me  altogether  excessive.  I  imagine  that  the  rules 
on  the  subject  were  drawn  up  before  the  codification  of  Indian 
law  had  gone  as  far  as  it  has  done,  and  in  particular  before 
the  Indian  law  of  evidence  had  been  codified.  The  most 
useful  exercise  which  can  now  be  imposed  on  a  young  civilian 
is  not  to  pick  up  a  little  law  from  a  trial  or  an  argument,  but 
to  acquire  as  much  as  possible  of  the  generalised  law  of  the 
codes  by  an  effort  of  memory,  which  is  less  distasteful  in 
earlier  than  in  later  life. 

There  are  some  further  but  minor  changes  in  the  periodi- 
cal examinations  which  seem  to  be  desirable,  but  it  would  be 
premature  to  discuss  them  before  the  nature  of  the  training  to 
be  given  to  the  selected  candidates  has  been  settled. 


412  MINUTES 

MEMORANDUM  ON  MR.    C AIR  US  REPORT 
ON  THE    CONDITION  OF  INDIA 

February  20,  1880. 

In  1879  Mr.  James  Caird,  C.B.,  was  appointed  a  member  of  the 
Indian  Famine  Commission.  In  a  letter  to  the  Home  Secretary  on 
this  subject  Lord  Salisbury  expressed  an  opinion  that,  apart  from  Mr. 
Caird's  special  duties  as  a  member  of  the  Commission,  advantage  to 
the  Indian  cultivator  might  be  expected  to  result  from  his  inquiries, 
and  from  the  advice  which  he  would  be  in  a  position  to  tender  to 
Her  Majesty's  Government.  Mr.  Caird,  accordingly,  after  spending 
about  four  months  in  India,  submitted  a  report  dated  October  31, 
1879,  which  was  presented  to  Parliament  and  sent  out  for  observations 
to  the  Governor  General  of  India  in  Council.  The  Government  of  India 
sent  home  an  exhaustive  reply  on  June  8,  1880.  In  the  meantime 
Sir  Henry  Maine  wrote  the  following  memorandum  on  Mr.  Caird's 
report  : 

It  would  not,  I  think,  be  an  unjust  or  inexact  description  of 
Mr.  Caird's  report  if  I  were  to  say  that  the  writer  proposes  to 
reverse  the  entire  history  of  British  India.  I  believe  there 
to  be  scarcely  one  of  the  political,  administrative,  judicial, 
and  fiscal  arrangements  recommended  by  him  which  might 
not  have  been  found  in  India  during  the  beginnings  of  British 
rule.  It  is  certain  that  at  first  there  was  no  central  or  Supreme 
Government,  and  that  the  various  British  territories,  separated 
by  wide  distances  from  one  another,  were  virtually  indepen- 
dent provinces.  Whatever  justice  was  administered  beyond 
the  British  factories  and  the  space  of  ground  sheltered  by 
them,  was  administered  by  Natives  under  Native  institutions, 
and,  assuredly,  without  the  smallest  reference  to  English  law. 
The  revenue  in  the  territories  first  ceded  to  the  East  India 
Company  was  taken  in  kind  ;  and  after  a  century  of  anarchy 
and  confusion,  the  now  exploded  assumption  was  universally 
made  that  all  the  land  of  India  belonged  to  the  state.  There 
was  no  organised  Civil  Service,  and  most  of  the  servants  of  the 
East  India  Company  who,  after  a  while,  rose  to  distinction, 
had  been  military  men.  There  was  no  necessity  for  'closing 
the  costly  Department  of  Public  Works,'  since  it  did  not 
exist,  and  the  large  Native  works  were  falling  everywhere 
into  ruin.     The  transition  from  British   India  as  it  then  was 


MEMORANDUM   OX    MR.   CAIRD'S    REPORT  413 

to  British  India  as  it  now  is  was  very  gradual.  Each  step 
onwards  was  supposed  to  be  suggested  by  the  experience  of 
the  past,  and  no  step  was  taken  till  it  was  believed  to  have 
the  approval  of  the  local  Indian  experts  most  in  credit. 
There  never  was  a  system  which,  after  the  first,  grew  up  less 
at  haphazard  than  that  under  which  British  India  is  adminis- 
tered and  governed.  It  would  almost  take  volumes  to  show 
this  by  anything  like  an  accurate  account  of  the  changes 
introduced  by  the  authority  of  the  Indian  Governments  and 
of  the  East  India  Company  ;  but  the  point  is  clear  from 
examination  of  the  acts  of  parliament  which  together  make 
up  the  Indian  constitution.  I  am  not  sure  that  Mr.  Caird  is 
quite  aware  how  many  acts  of  parliament  he  seeks  to  repeal. 
The  greater  part  of  the  institutions  he  would  change  derive 
their  legal  status,  not  from  any  Indian  authority,  but  from  a 
long  series  of  statutes,  each  amending,  modifying,  or  extending 
the  last.  The  Supreme  Government  of  India  thus  derives  its 
constitution  and  powers  from  many  successive  acts  of  parlia- 
ment, of  which  the  earliest  is  the  Regulating  Act,  13  Geo.  III., 
c.  63  (1772),  and  the  latest  32  &  33  Vict,  c  98  (1869).  The 
Executive  Council  of  the  Governor  General,  which  Mr.  Caird 
would  abolish,  was  the  subject  of  legislation  from  1772  to 
1861,  and  indeed  to  1874 — from  the  Regulating  Act  to  the 
Indian  Councils  Act  and  the  Act  amending  the  last,  '},'j  &  38 
Vict.,  c.  91.  The  Indian  judicial  system,  so  far  as  it  is  not  of 
local  origin,  begins  in  a  charter  of  26  Geo.  II.,  1752.  Parlia- 
ment legislated  respecting  the  Indian  covenanted  civil  service 
in  1793  (33  Geo.  III.,  c.  52);  and  it  is  now  affected  by  no 
less  than  seven  succeeding  Acts.  The  mode  of  recruiting  it 
by  competition  from  among  Her  Majesty's  subjects  at  large 
was  first  of  all  introduced  in  1853  by  16  &  17  Vict,  c.  95, 
and  it  now  rests  on  21  &  22  Vict,  c.  106  (1858).  If  anybody 
will  be  at  the  patience  to  examine  these  several  strings  of 
statutes,  he  will  find  that  each  enactment  adopts  the  pre- 
ceding state  of  the  law  as  the  basis  of  legislation,  and  then 
fortifies,  enlarges,  or  abridges  it.  Almost  all  the  changes 
carried  out  by  Parliament  were  made  on  the  recommendation 
of  committees  of  both  Houses,  which  sat  for  long  periods  of 
time,  and  took  the  evidence  of  as  many  Indian  experts  as 


414  MINUTES 

were  available,  whenever  the  time  came  round,  at  intervals  of 
twenty  years,  for  renewing  the  East  India  Company's  lease 
of  Indian  government. 

I  certainly  do  not  deny  that  an  intelligent  man,  during  a 
three  or  four  months'  stay  in  India,  in  which  he  has  made 
the  most  of  his  opportunities,  may  detect  some  errors  of 
defect  or  excess  in  policy  which  escape  eyes  habituated  to 
the  existing  system  of  government  and  administration.  But 
I  earnestly  protest  against  regarding  the  established  Indian 
constitution  as  deserving  to  be  dealt  with  differently  from 
any  other  result  of  accumulated  experience.  I  claim  for  it 
the  ordinary  presumption  against  change  which  throws  the 
burden  of  explicit  and  laborious  proof  upon  the  advocate 
of  change  ;  and,  indeed,  I  assert  that  there  is  the  strongest 
presumption  against  sweeping  change  when  the  institutions 
in  question  are  so  unexampled  in  the  political  history  of 
mankind  as  are  those  of  British  India.  All  the  laws  which  I 
have  cited,  and  a  mass  of  regulated  arrangements  to  which 
I  have  not  had  space  to  refer,  are  not  seriously  discredited 
by  a  number  of  generalities  so  wide  and  vague  that  half  a 
dozen  meanings  can  be  attached  to  each  of  them.  I  again 
wholly  deny  the  Indian  constitution  to  be  so  slightly  rooted 
that  it  could  be  torn  up  without  far-reaching  disturbance. 
Apart  from  the  good  or  evil  in  Mr.  Caird's  proposals,  I  believe 
that  their  adoption  would  give  a  dangerous  wrench  not  only 
to  native  Indian  society,  but  to  the  large  portions  of  English 
and  European  society  which  are  now  bound  up  with  India. 
This  remark  is  not  made  rashly,  as  may  be  seen  by  one  con- 
sequence of  only  one  of  these  recommendations.  Mr.  Caird 
proposes,  h  ccEur  Icger,  to  abolish  the  Government  of  India. 
But  most  of  the  considerable  Indian  public  debt  has  been 
raised  on  the  security  of  the  Government  of  India,  not  on  that 
of  the  Provincial  Governments  ;  on  the  face  of  the  India 
*  rupee  paper,'  it  is  the  Governor  General  in  Council  who 
promises  to  pay.  For  this  security,  Mr.  Caird,  without  asking 
the  consent  of  the  public  creditor,  proposes  to  substitute  that 
of  the  Provincial  Governments — a  much  worse  security,  if  my 
observations  of  provincial  finance  can  be  trusted.  If  the 
Supreme  Government  of  India  could  really  be  abolished — 


MEMORANDUM   ON    MR.    CAIRD'S    REPORT  415 

which  I  myself  believe  to  be  impossible — Parliament,  which 
alone  has  authority  to  provide  for  the  abolition,  would  be 
forced  to  secure  the  Indian  creditor  against  loss  ;  and  thus 
that  gravest  of  all  financial  questions,  the  question  of  an 
Imperial  guarantee  for  the  Indian  debt,  is  involved  in  a  mere 
detail  of  only  one  of  Mr.  Caird's  proposals. 

I  have  no  intention  of  entering  on  a  speculation  as  to  the 
possibility  of  dispensing  with  the  Supreme  Government  of 
India.     There  must  be  a  mass  of  papers,  either  among  the 
India  Office  records  or  at  Calcutta,  in  which  a  rational  and 
much  less  extreme  form  of  this  idea  is  discussed  under  the 
name    of  '  decentralisation,'    and    those    who    have   followed 
recent  Indian  history  do  not  need  to  be  informed  that,  ever 
since  Lord  Mayo's  Viceroyalty,  the  experiment  of  limiting 
the  authority  of  the  Supreme  Government  in  some  important 
particulars  has  been  tried  with  conspicuous  success.     Leaving 
the  further  examination  of  the  question  to  those  who  have 
had  a  larger  local  experience  than   I   have  had  of  the  actual 
relations  between  the  Supreme  and  Provincial  Governments, 
I  pass  from  it  with  the  remark  that  one  consideration  alone 
seems  to  show  that  the  Supreme  Government  of  India  cannot 
be  abolished,  though  its  seat  may  be  shifted.     Let  us  suppose 
that  all    authority  over    British   India  has  been   distributed 
between  seven  or  eight  Provincial  Governments  independent 
of  one  another.    Each  of  these  Governments  will,  not  the  less, 
be  of  a  type  hitherto  unexampled  in  the  world.      In  each  of 
them,  a  handful  of  foreigners  will  be  ruling  over  many  millions 
of  Natives,  divided  from  them  by  race,  colour,  religion,  lan- 
guage, associations,  and  domestic  institutions.     Unless  each 
Government  is  to  become  a  stern  irresponsible  despotism,  all 
must  be  brought  under  the  strict  control  of  some  authority 
above.     Unless  the  action  of  the  whole  group  be  harmonised, 
there  will  be  endless  confusion.     Unless  every  province  is  to 
be  financially  self-supporting,  which  is  at  present  out  of  the 
question  as  regards  some  of  them,  there  must  be  some  superior 
power  to  regulate  the  drafts  of  the  poorer  on  the  treasuries  of 
the    richer  Governments.      The  question,   therefore,    is    not 
whether  there  shall  be  a  Viceroy  somewhere,  but  where  he 
shall  be.     If  the  seat  of  the  Supreme  Government  be  not  at 


4l6  MINUTES 

Calcutta  or  Simla,  it  will  have  to  be  in  Downing  Street  ;  and 
the  same  central  authority  which  is  now  exercised  by  the 
Government  of  India  will  have  to  be  exercised  by  the  Secretary 
of  State  in  Council,  under  (I  venture  to  think)  far  greater 
disadvantages. 

I  pass,  however,  to  assertions  and  arguments  in  Mr. 
Caird's  report  which  have  a  more  immediate  interest  for  a 
former  law-member  of  Council.  Thus  I  find  the  writer 
speaking  (p.  5)  of  the  'moral  disorganisation  produced  by 
laws  affecting  property  and  debt  not  adapted  to  the  condi- 
tion of  the  people.'  Again,  the  English  officers  are  said 
(p.  6)  to  be  'enforcing  a  system  of  law  the  justice  of  which 
(the  Natives)  are  slow  to  comprehend,  while  its  costliness  and 
delay  are  manifest.'  And  the  law  responsible  for  all  these 
consequences  Mr.  Caird  over  and  over  again  asserts  to  be 
English  law.  'The  error,'  he  writes  (p.  ii),  'has  been  in 
substituting  the  ideas  and  detail  of  English  law  affecting 
property  and  debt  for  those  of  the  East.'  He  states  in  his 
'Notes  by  the  Way  in  India'  (p.  726),  that  the  conclusion 
established  by  that  series  of  papers  is  that  '  the  application  of 
the  principles  of  English  law  as  between  debtor  and  creditor 
is  becoming  widely  disastrous.'  He  quotes  ('Notes,'  p.  716) 
with  approval  the  opinion  of  a  Native  witness  that  the  suffer- 
ings of  the  indebted  Dekkhan  peasantry  were  caused  by  the 
Indian  Limitation  Act  of  1859,'  which  he  seems  to  regard  as 
being  in  some  way  connected  with  English  law.  And  the 
most  general  proposition  which  observation  of  India  has 
suggested  to  him  is  that  '  India  needs  better  Native  agricul- 
ture, and  less  English  law.' 

These  sweeping  accusations  are  extremely  perplexing  to 
one  who  has  made  the  usage,  law,  and  legislation  of  India  his 
principal  study  for  not  much  short  of  seventeen  years.  They 
are  couched  in  such  general  terms  that  they  may  be  construed 
in  many  different  ways,  but  in  their  most  obvious  meaning 
they  seem  to  be  in  diametrical  contradiction  to  the  facts.  Of 
all  the  charges  ever  brought  against  Anglo-Indian  officials, 
perhaps  the  most  grotesquely  unfounded  is  that  they  have 

>  Repealed  by  Act  IX.  of  1 871.  The  present  Indian  Limitation  Act  is  Act 
XV.  of  1877. 


MEMORANDUM   ON    MR.   CAIRD'S    REPORT  417 

introduced  English  ideas  concerning  property  into  India. 
The  truth  seems  to  me  rather  to  be  that  they  have  taken  too 
much  pains  to  ascertain  Indian  ideas.  By  their  careful 
and  long-continued  investigations  they  have  created  a  vast 
literature  of  Native  Indian  land  tenure,  which  is  of  the  very 
highest  historical,  archaeological,  and  sociological  value,  but 
which  has,  perhaps,  the  defect  of  not  suggesting  conclusions 
as  distinct  as  for  practical  purposes  might  be  wished.  One 
instance  of  the  application  of  English  ideas  to  property  has, 
indeed,  become  memorable  in  British  Indian  history,  the 
Permanent  Settlement  of  Lower  Bengal  by  Lord  Cornwallis  ; 
but  a  writer  who  proposes  a  standing  commission  (Report, 
p.  18)  for  introducing  the  purely  English  conception  of 'free- 
hold '  ownership  into  India  can  scarcely  quarrel  with  the 
Permanent  Settlement.  What  is  meant  by  saying  that  Eng- 
lish notions  as  to  debt  have  been  too  freely  imported,  I  do 
not  understand.  The  only  '  idea '  that  can  be  said  to  have 
guided  Anglo-Indian  legislation  and  the  action  of  the  Anglo- 
Indian  Courts  on  the  subject  is  the  idea  of  obligation  incurred 
by  contracting  debt.  The  principle  that  a  man  ought  to  pay 
his  debts  is  doubtless  found  in  English  law,  but  it  is  also 
found  in  the  written  Hindu  law,  and  (as  far  as  I  know)  in  all 
unwritten  Hindu  custom,  and  it  stands  out  with  a  peculiar 
distinctness  on  the  face  of  the  Muhammadan  law. 

I  am  driven  to  conjecture  that  Mr.  Caird  has  not  full)' 
understood  a  certain  kind  of  complaint  which  is  commonly 
addressed  to  persons  new  to  India,  and  believed  to  be  invested 
with  some  degree  of  authority.  Like  Mr.  Caird,  I  have  often 
heard  valuable  public  servants  lament  the  decay  of  '  patriar- 
chal '  administration.  The  officer  of  Government  who  uses 
this  language  does  not,  as  at  first  sight  might  be  thought, 
propose  to  turn  over  the  dispensation  of  justice  to  chiefs  of 
tribes  and  heads  of  families.  What  he  means  is  that  he 
ought  to  be  the  patriarch  himself  He  regrets  the  growing 
number  of  rules  which  abridge  his  discretion,  and  which  he 
must  obey  under  penalty  of  rebuke  from  his  superior  or  from 
some  court  of  appeal  ;  and  I  have  noted  that  he  is  exceedingly 
apt  to  give  the  name  of  English  lav/  to  the  rules  he  dislikes. 
There  is,  in  fact,  a  conflict  always,  more  or  less,  proceeding  in 

E  E 


4l8  MINUTES 

India  between  two  s}'stems,  each  excellent  in  its  place — the 
reign  of  law  and  the  regimen  of  discretion.  The  rational 
conclusion  to  arrive  at  is,  not  that  either  of  these  systems 
should  be  given  an  unqualified  ascendency  over  the  other,  but 
that  the  limits  of  both  should  be  most  carefully  adjusted  to 
the  varieties  of  the  Indian  population.  For  my  part,  I  have 
the  strongest  sympathy  with  the  preference  of  some  Indian 
officials  for  discretionary  administration,  where  the  people 
have  not  outgrown  it ;  and  nobody  impressed  on  successive 
Secretaries  of  State  more  earnestly  than  I  did  the  urgent 
necessity  of  procuring  the  enactment  by  Parliament  of  some 
such  measure  as  statute  33  Vict.,  c.  3,  sees,  i  and  2,  by  which 
the  preservation  of  the  discretionary  system  in  parts  of  India 
has  been  materially  secured.'  But  it  is  vain  to  deny  that  this 
system  is  inconsistent  with  even  a  slight  advance  in  the  people 
to  which  it  is  applied,  and  that  thus  the  area  over  which  it  is 
applied  is  constantly  diminishing.  In  the  first  place,  unless 
it  is  to  degenerate  into  loose  and  capricious  tyranny,  it 
demands  great  industry  and  great  conscientiousness  in  the 
men  in  whose  hands  it  is  placed  ;  and  though  these  qualities 
have  often  been  found  in  a  large  number  of  Indian  officials, 
they  are  not  the  less,  on  the  whole,  rare  qualities,  and  there 
is  no  perennial  or  unlimited  supply  of  them.  Secondly,  the 
discretionary  administration  of  justice  is  incompatible  with  a 
high  and  even  a  moderate  degree  of  commercial  activity,  for 
this  imperatively  demands  a  strict  uniformity  in  the  interpre- 
tation of  law,  and  particularly  in  the  construction  of  agree- 
ments. No  considerable  undertaking  could  be  carried  out  if 
the  way  in  which  the  subordinate  contracts  were  to  be  per- 
formed depended  on  the  light  in  which  they  were  seen  by  a 
score  or  two  of  military  gentlemen  placed  at  great  distances 
from  one  another,  and  guided  by  an  untutored  sense  of  justice. 
Lastly,  I  believe  the  regimen  of  discretion  to  be  thoroughly 
unpopular  with  the  Natives  of  India.^  I  have  never  conversed 
with  an  educated  Native  who  did  not  seem  to  abhor  it ;  but  I 
do  not  rely  so  much  on  this  as  on  the  evidence  of  a  similar 
feeling  in  other  and  much  more  numerous  classes.     The  bill, 

'  See  above,  p.  360. 

^  See  the  remarks  of  Sir  Sayyid  Ahmad  above,  p.  62. 


MEMORANDUM    ON    MR.    CAIRD'S    REPORT  419 

of  which  a  portion  became  the  Bombay  Land  Revenue  Code 
(Rombay  Act  V.  of  1879),  had  much  to  recommend  it,  but  if 
ever  there  were  signs  of  a  real  popular  effervescence  against 
proposed  legislation,  they  showed  themselves  in  respect  of 
this  measure.  And  the  popular  grievance  was  that  the 
discretion  of  officials  was  to  be  enlarged  by  it  at  the  expense 
of  the  jurisdiction  of  the  courts  of  justice. 

If  the  language  of  Indian  public  servants,  who  see  only 
one  side  of  the  gold-and-silver  shield,  has  led  Mr.  Caird  into 
misapprehension,  it  must  have  been  increased  by  a  specific 
error  into  which  he  appears  to  me  to  have  fallen.  I  cannot 
construe  the  concluding  paragraphs  of  his  '  Notes  by  the 
Way'  otherwise  than  as  showing  that  he  supposes  the 
Indian  Supreme  Courts  (which  undoubtedly  administered 
English  law)  to  be  still  in  existence,  and  to  be  exercising 
jurisdiction  over  the  whole  of  India.  These  paragraphs  are 
apparently  condensed  from  the  third  volume  of  James  Mill's 
'  History  of  British  India  ;  '  but  Mr.  Caird  does  not  seem  to 
have  noticed  that  Mill's  condemnation  of  the  technicalities  of 
English  law  and  of  their  introduction  into  British  India 
applies  only  to  a  particular  stage  in  the  history  of  Indian 
judicial  institutions,  and  a  comparatively  brief  one.  The 
Supreme  Court  of  Calcutta  was  established  in  1774,  under 
statute  Geo.  III.,  c.  63,  and  it  immediately  began  those  usur- 
pations of  general  jurisdiction  over  the  interior  of  Bengal 
which  are  graphically  described  in  Macaulay's  essay  on 
Warren  Hastings.  But  Parliament  was  roused  by  the 
vehement  protests  of  the  East  India  Company,  and  six  years 
aftervvards,  in  1780,  it  passed  21  Geo.  III.,  c.  20,  which 
expressly  recites  that  it  is  designed  to  protect  '  the  native 
inhabitants  of  the  British  provinces  in  India  in  the  enjoy- 
ment of  their  ancient  laws,  usages,  rights,  and  privileges.' 
This  statute  effectually  clipped  the  wings  of  the  Supreme 
Courts.  It  substantially  reduced  them  to  the  footing  of  local 
courts  for  the  presidency  towns  or  cities  of  Calcutta,  Madras, 
and  Bombay  ;  and  even  in  these  cities  all  questions  of  con- 
tract, succession,  and  inheritance  were  to  be  decided  by  Native 
law  where  the  defendant  was  a  Native.  The  Supreme  Courts 
retained  a  general  civil  jurisdiction  where  there  was  an  agree- 


420  MINUTES 

ment  of   both  parties  to  submit  to   it,  and  a  general  penal 
jurisdiction   over  Europeans  ;  but,  though   they  were  to  the 
last  courts  of  much  formal  dignity,  they  no  more  exercised 
jurisdiction   over   all    India  than   do  the  Liverpool  Court  of 
Passage  and  the  Liverpool  Recorder's  Court  over  all  England. 
The  wrongs  with  which   Macaulay  in  another    capacity  re- 
proached the  Supreme  Court  of  Madras  were  suffered,  if  at  all, 
by  the  citizens  of  the  city  of  Madras,  and  not  by  the  millions 
of   Madras    provincials.     Finally,  the  Supreme  Courts  were 
abolished  by  Parliament  in  i86i,  and  since  then  the  special 
jurisdiction  which  the  existing  High  Courts  inherited  from  them 
has  been  invaded  and  curtailed  on  all  sides  by  Indian  legislation. 
I  fully  admit  that,  if    there  had  been  no  countervailing 
force,  an  excessive  amount  of  English  law,  and  not  always  of 
the  best  portions  of  it,  would  have  made  its  way  into  Indian 
jurisprudence.     The  quarter  and   the   manner  in  which   this 
danger  has  disclosed  itself  ought  to  be  attentively  studied  by 
everybody  who  is  disposed  to  share  IMr.  Caird's  ideas.     The 
tribunals    which    really    administered    justice    to    the    multi- 
tudinous Native  population  of  the  British  provinces  were,  not 
the  Supreme  Courts,  but  the  .so-called  Sadr  Courts  and  the 
local  courts  subordinate  to  them.     Their  jurisdiction  was  un- 
doubtedly so  defined  from  the  first  as  to  exclude  the  invasion 
of   English   law.      In   the  absence  of  legislative  enactments, 
they  were  directed  to  follow  Hindu  and  Muhammadan  law, 
and,  if  they  could  find  no  special  rule,  they  were  to  act  accord- 
ing to  'justice,  equity,  and  good  conscience.'     The  Hindu  and 
Muhammadan    laws,  whether  those  words  are  construed  to 
include    the  written   sacerdotal  systems   passing  under  that 
name,  or  whether  they  are  limited  to  Native  usages  actually 
practised,  arc    not    uncommonly  supposed    by  persons  who 
have  not  examined  them  to  contain  materials  for  the  solution 
of  all  questions  which  can  arise  between  man  and  man.     In 
reality,  they  are    in    the    highest    degree  vague  and  contra- 
dictory, they  are  excessively  scanty,  and  in  some  of  the  great 
branches  of  jurisprudence  they  contain  no  rules  at  all.     Some 
of  the  most  violent  and  mischievous  oscillations  of   Indian 
agrarian    policy   were    brought    about    by    the   contradictory 
results  reached    by  skilled    Indian  observers  examining  the 


ME^rORANDUM   ON    MR.    CAIRD'S    RErORT  42 1 

same  department  of  Native  usage  with  equal  diligence  and 
equal  good  faith.  Hence  the  provincial  judge,  finding  no 
pertinent  Native  rule,  was  thrown  back  on  'justice,  equity, 
and  good  conscience,'  and,  as  these  standards  of  decision  do 
not,  unfortunatel}-,  carry  us  very  far  by  themselves  in  legal 
matters,  he  consciously  or  unconsciously  took  his  opinion 
from  the  only  civilised  system  of  jurisprudence  accessible  to 
him.  English  law,  gathered  from  textbooks  by  provincial  and 
sadr  judges,  was  in  fact  creeping  in  on  all  sides,  disguised 
as  equity  and  good  conscience.  {See  the  language  of  the 
Privy  Council,  9  Moore's  Indian  Appeals,  303.)  But  against 
this  danger  Parliament  and  the  Indian  Government  have  been 
struggling  for  half  a  century,  the  latter  amid  much  interested 
contumely  and  ignorant  misconstruction.  Mr.  Caird,  in  his 
'  Notes  by  the  Way,'  has  quoted  James  Mill's  denunciation 
of  the  superstitions  of  English  lawyers,  but  he  has  not  quoted 
the  words  with  which  the  passage  begins  :  '  The  grand  source 
of  mischief  to  the  Natives  was  the  unfortunate  inattention  of 
the  authors  (of  the  institutions  of  1774)  to  the  general  prin- 
ciples of  law,  detached  from  its  accidental  and  national  form.' 
(Mill,  Book  IV.,  cap.  9).  These  last  words  accurately 
describe  the  objects  professed  by  Parliament  when  in  1833 
and  1853  it  directed  the  appointment  of  the  two  Indian  law 
commissions,  and  those  also  of  the  Indian  Government  and 
Legislature  in  passing  the  series  of  measures  not  altogether 
happily  called  the  Indian  Codes.  These  measures  are  intended 
to  provide  a  legislative  basis  of  rules  in  all  the  great  branches 
of  jurisprudence,  and,  unless  the  express  command  of  Parlia- 
ment is  neglected  in  them,  '  due  regard  is  to  be  had  to  the 
rights,  feelings,  and  peculiar  usages  of  the  people  of  India.' 
These  measures  are  not  nearly  complete,  and  I  have  been  too 
much  associated  with  some  of  them  to  venture  to  assert  that 
they  have  been  always  on  a  level  with  the  beneficent  inten- 
tions of  Parliament ;  but  the  language  which  I  sometimes 
hear  about  the  Indian  Codes,  and  which  I  more  than  suspect 
has  been  used  by  some  of  Mr.  Caird's  informants,  betrays  an 
astonishing  confusion  between  the  disease  and  the  remedy. 
There  is  a  real  tendency  in  English  law,  which  is  one  of  the 
most    minute  and    extensive  (though    not    one  of  the  most 


422  MINUTES 

orderly)  of  legal  systems,  to  make  its  way  into  India  through 
judicial  decisions,  and  this  tendency  can  be  combated  in  only 
one  way,  by  the  legislative  provision  of  simple  and  distinctly 
stated  rules,  adjusted,  so  far  as  is  possible  and  permissible,  to 
Native  modes  of  thought  and  peculiarities  of  feeling. 

I  will  dwell  for  a  moment  on  an  early  effort  of  systematic 
Indian  legislation  to  which  Mr.  Caird's  informants  seem  to 
have  attributed  a  share  in  the  sufferings  of  the  indebted 
peasantry  of  the  Dekkhan.  The  limitation  of  actions,  that  is^ 
the  period  within  which  a  legal  right  must  be  enforced,  stands 
(while  I  write)  for  ordinary  debts  in  England  at  six  years,  and 
stood  in  India  at  twelve  years.  But  in  1871  the  period  was 
reduced  in  India  to  three  years.  Anybody  familiar  with  the 
country  will  see  at  once  that  the  policy  of  the  measure,  which 
was  promoted  by  two  Indian  Chief  Justices,  was  purely  Indian. 
Frauds  and  perjuries  abound  amid  the  Indian  population,  and 
it  was  in  the  highest  degree  desirable  to  protect  helpless 
defendants  against  old  demands  of  ten  or  eleven  years'  stand- 
ing, attempted,  perhaps,  to  be  established  by  forgery  and 
false  swearing,  but  at  the  best  rebutted  with  the  greatest 
difficulty,  on  account  of  their  staleness.  There  is  no  reason 
to  suppose  that  this  part  of  the  law  of  1861  has  not  succeeded 
in  its  main  object,  and  I  hope  that  nobody  will  be  foolish 
enough  to  propose  its  repeal.  But  Mr.  Caird  quotes  with 
manifest  approval  the  statement  of  a  Native  informant  ('  Notes 
by  the  Way,'  p.  716),  that  this  '  well-meant  attempt  to  restrain 
the  accumulation  of  interest  .  .  .  has  greatly  increased  liti- 
gation, and  proved  injurious  to  the  borrower  .  .  .  For  the 
creditor,  to  prevent  his  claim  being  barred  by  time,  not  in 
order  to  recover  the  debt,  must  file  a  suit  every  third  year,  the 
cost  of  which  thus  falls  on  the  debtor  four  times  in  twelve 
years  instead  of  once.  The  bond  at  each  time  is  renewed 
with  added  interest.  The  debt  thus  assumes  four  new  forms 
during  a  period  of  twelve  years,  and,  with  interest  at  33  per 
cent.,  doubles  itself  every  third  year.'  I  assert  that  this  is  a 
gross  and,  on  the  part  of  the  Native  informant,  a  highly 
suspicious  misrepresentation  of  the  law.  No  enactment  pre- 
pared by  a  rational  man,  not  to  speak  of  two  eminent  judges, 
ever  provided  that,  in  order  to  prevent  a  bond-debt  from  being 


IMEMORANDUM    ON    MR.    CAIRD'S   REPORT  423 

barred  by  time,  a  new  bond  must  be  executed.  All  that  the 
Act  really  requires  is  a  written  admission  or  acknowledgment 
of  continuing  liabilit)-.  (See  the  successive  Indian  Acts,  XIV. 
of  1859,  s.  4,  IX.  of  1871,8.  20,  XV.  of  1877,  s.  19.)  Of  course 
I  do  not  deny  that  the  Dekkhan  money-lender  may  have  told 
the  Dekkhan  peasant  that,  in  order  to  keep  himself  from  being 
sued,  he  must  execute  a  fresh  bond,  with  interest  and  prin- 
cipal consolidated.  But  this  is  merely  a  false  statement  as  to 
the  law,  and  I  may  add  that  the  misrepresentation  of  Govern- 
ment orders  and  laws  is  a  very  common  basis  for  Indian 
frauds.  In  this  particular  class  of  cases,  I  have  it  on  the  best 
authority,  that  the  nature  of  the  transaction  is  always  shown 
on  the  face  of  the  bond,  still  each  new  bond  invariably  recites, 
not  the  existence  of  the  antecedent  debt,  but  (of  course  falsely) 
a  loan  just  made  of  money  equivalent  to  the  old  principal 
and  interest. 

It  is  proper  that,  after  examining  Mr.  Caird's  condemna- 
tion of  the  principles  of  Anglo- Indian  law,  I  should  say 
something  on  his  proposals  of  reform  in  the  Anglo-Indian 
administration  of  justice.  At  page  28  of  his  Report  I  find  the 
following  sentence  : — '  The  costly  English  Civil  Service  should 
be  limited  to  such  numbers  in  each  presidency  as  would 
supply  European  superintendence  for  each  district,  and  an 
appeal  judge,  to  whom  appeal  from  the  Native  courts  would 
lie.'  And  again  at  page  29,  '  For  the  office  of  appeal  judge, 
men  should  have  legal  training,  and  that  should  include  Hindu 
and  Muhammadan  law.'  I  quote  these  passages  to  justify 
me  in  saying  that  the  proposal,  so  far  as  it  relates  to  judicial 
changes  in  India,  is  quite  unintelligible.  Taken  in  one  sense, 
Mr.  Caird's  words  merely  describe  existing  facts.  There  are 
very  many  districts  in  British  India  in  which  there  is  only  one 
judge  of  civil  appeal,  who  must,  by  Act  of  Parliament,  be  a 
covenanted  civilian  ;  and,  under  the  present  arrangements  of 
the  Secretary  of  State,  he  must  receive  a  '  legal  training ' 
before  he  goes  out,  and  this  training  does  include  '  Hindu  and 
Muhammadan  law.'  As,  however,  Mr.  Caird  seems  to  be 
recommending  something  new,  I  am  driven  to  suppose  that 
his  silence  is  significant,  and  that  he  desires  to  abolish  the 
High  Courts,  which    he  does  not    mention.     There  are  now 


424  MINUTES 

four  High  Courts  and  one  Chief  Court  in  India,  in  which 
covenanted  civilians  sit  with  EngHsh  and  Native  lawyers.  In 
the  High  Court  of  Bengal  alone  there  are  thirteen  judges, 
and  ninety-nine  hundredths  of  their  business  consists  in  hear- 
ing first  or  second  appeals  from  the  interior  of  that  law-loving 
province.  If  Mr.  Caird  really  proposes  to  abolish  these  courts 
I  can  only  express  my  astonishment.  Possibly  he  confounds 
them  v/ith  the  abolished  Supreme  Courts  which  they  have 
absorbed  and  superseded,  and  supposes  them  to  be  openly 
administering  pure  English  law.  Perhaps  he  thinks  that,  if 
Native  courts  were  greatly  m.ultiplied,  appeals  might  be  largely 
diminished.  Nobody  wishes  more  than  I  do  to  give  increased 
judicial  employment  to  the  Natives  of  India  ;  nobody  rejoices 
more  that  statute  33  Vict.,  c.  3,  s.  6,  was  passed  ;  but  I  am 
afraid  that  the  multiplication  of  Native  judges  will  rather  add 
to  the  necessity  for  the  control  of  appeal.  If  Mr.  Caird  had 
sat  by  the  side  of  the  judge  in  an  Indian  court  of  justice,  he 
might  have  heard  much  acute  and  subtle  argument  from  Native 
lawyers,  couched  in  excellent  English,  but  he  would  have 
noticed  in  their  speeches  a  somewhat  inordinate  love  of  tech- 
nicality, a  certain  inattention  to  the  merits  of  the  case,  and  a 
certain  want  of  what  we  here  call  common  sense.  These  are 
defects  which  Native  judges  would  carry  with  them  to  the 
Bench,  and  there  is  no  way  of  correcting  them  except  by 
appeal.  The  cautious  limitation  of  the  power  of  appealing, 
for  which  the  Natives  of  India  have  a  strong  but  not  quite 
wholesome  taste,  is  exceedingly  desirable,  but  the  difficulty  of 
curtailing  it  is  rather  increased  than  otherwise  by  the  freer 
employment  of  Native  judges. 

Mr.  Caird's  farther  proposals  of  judicial  reform  are  as 
follows  : — '  The  employment  of  pleaders  in  Small  Cause 
Courts  should  be  forbidden,  and  the  whole  responsibility  be 
cast  upon  the  judges.  The  native  Punchayet  Courts  should 
be  recognised.  The  fees  exacted  by  Government  in  Small 
Cause  Courts  should  be  abolished.'  These  recommendations 
are  again  very  puzzling  when  compared  with  the  facts.  Over 
much  the  greater  part  of  India  a  Small  Cause  Court  is  a  special 
court,  presided  over  by  a  judge  selected  for  special  qualifica- 
tions, who  adjudicates  without  appeal.     As  the  principal  check 


MEMORANDUM   ON    MR.   CAIRD'S    REPORT  425 

on  the  judge,  and  the  principal  guarantee  for  his  thoroughness 
and  fairness,  is  the  presence  of  a  Bar,  a  Small  Cause  Court  seems 
to  be  about  the  last  Indian  tribunal  in  which  the  employment 
of  pleaders  can  be  safely  discarded.  As,  moreover,  in  spite 
of  their  name,  these  courts  have  now  a  jurisdiction  over  de- 
mands of  not  inconsiderable  amount,^  and  as,  through  the 
absence  of  appeal,  the  justice  administered  by  them  is  on  the 
whole  cheaper  than  elsewhere,  it  is  hard  to  understand  why  a 
different  principle  should  govern  the  fees  which  they  levy  from 
that  which  is  applied  to  other  courts.  The  suggestion  that 
the  Native  Panchayat  Courts  should  be  recognised  is  also 
extremely  obscure.  A  Panchayat  is  a  body  of  five  arbitrators, 
and  sections  525,  526  of  the  Code  of  Civil  Procedure  -  plainly 
recognise  the  award  of  such  a  body,  and  provide  for  its  being 
filed  in  court  and  enforced  by  legal  process.  Here,  again,  I 
can  only  comprehend  Mr.  Caird's  proposal  by  comparing  it 
with  the  evidence  of  the  Native  informant  whom  he  met  at 
Puna  ('Notes  by  the  Way,'  p.  716).  No  doubt  the  system 
of  arbitration  recommended  by  this  person  is  not  that  of  the 
Code  of  Civil  Procedure.  The  code  contemplates  an  arbitra- 
tion to  which  both  parties  have  agreed,  and  I  may  observe  in 
passing  that,  if  this  informant  rightly  stated  that  both  '  sowcar  '* 
and  ryot  would  prefer  the  Panchayat,'  they  can  even  now 
have  it  at  any  moment.  But  other  parts  of  his  statement 
leave  no  doubt  on  my  mind  that  he  meant  to  dispense  alto- 
gether with  the  assent  of  the  litigants  and  to  force  them  back 
on  some  form  of  the  ancient  Indian  Panchayat,  sitting  under 
village  authority,  and  generally  consisting  of  the  village  council 
of  five,  with  the  headman  presiding,  wherever  that  village 
officer  is  found.  On  this  assumption  we  must  at  once  exclude 
from  Mr.  Caird's  universal  remedy  the  seventy  millions  of  souls 
who  inhabit  Lower  Bengal,  in  which  the  village  organisation 
has  long  since  perished. 

I  am  the  last  person  to  deny  interest  and  value  to  the 
village  community  and  its  characteristic  institutions.  It  is  a 
primitive,  natural,  social  organism.      It  seems  to  have  been 

'  Rs.    500   under  Act  XI.  of  1S65,  "  Act  XIV.  of  1882. 

sec.  6,  extendible  under  sec.   7  to  Rs.  •'  Az7^«/t(ir,  a  native  banker  oi' moneys 

1,000.     See  now  Act  IX.  of  1887,  sec.  dealer. 
15- 


426  MINUTES 

continued  longer  among  the  Hindus  than  among  other  com- 
munities of  the  same  race  by  the  prcvaiHng  anarchy  of  the 
country,  and  doubtless  they  owed  to  it  some  rudimentary 
administration  of  justice  when  no  Government  existed  outside 
the  village  capable  of  giving  authority  to  court  or  judge.  But 
to  abolish  the  tribunals  which  have  now  existed  in  parts  of 
British  India  for  more  than  a  century,  and  to  go  back  to  the 
village  courts,  is  to  follow  the  precedent  set  the  other  day  by 
the  Chinese  Government,  which,  having  got  possession  of  the 
only  railway  in  the  country,  proceeded  to  take  up  the  rails 
and  destroy  the  earthworks.  You  may  dismantle  the  railroad, 
but  you  cannot  prevent  travellers  from  again  wasting  their 
time  and  becoming  footsore.  You  may  revive  the  village 
courts,  but  you  will  inevitably  resuscitate  the  barbarism  which 
went  with  them.  Speaking  generally,  he  who  would  bring  to 
life  again  one  of  these  barbarous  institutions  is  placed  in  the 
following  dilemma  :  either  he  must  connive  at  many  of  their 
accompaniments  which  are  condemned  by  modern  moralit)' 
and  modern  civilisation  ;  or,  in  the  attempt  to  give  them  a 
new  character,  he  must  so  transmute  them  that  they  cannot 
be  distinguished  in  any  sensible  degree  from  the  modern 
institutions  by  which  civilisation  has  superseded  them.  I 
venture  to  say  that  every  reader  of  the  ancient  Hindu  law- 
books will  be  convinced  that,  even  in  the  comparatively  dig- 
nified courts  which  took  their  procedure  from  these  treatises, 
the  perjury  of  witnesses  and  the  corruption  of  judges  were 
common  though  reprobated,  and  all  evidence  was  subordinated 
to  cruel  and  superstitious  ordeals  amounting  to  torture.^  Now 
these  are  the  very  faults  of  Native  character  and  the  very 
Native  practices  against  which  British  Indian  administrators 
are  still  struggling.  Perjury  and  corruption  are  still  deplo- 
rably common  in  India  :  ordeals  are  perpetually  resorted  to  in 
private  life  ;  and  it  is  with  the  greatest  difficulty  that  public 
officers,  such  as  policemen,  can  be  kept  from  extracting 
admissions  by  torture.  If  there  is  improvement  in  all  these 
particulars,  it  is  mainly  owing  to  the  British  courts,  which  are 
in  truth  at  the  same  time  great  schools  of  veracity  and  of 

'  See  as  to  the  Hindu  ordeals,  V.  N.  210-214,  and  E.  Schlagintweit,  Die 
Mandlik's  Vyavahdra  Mayuk/ia,  Bom-  Gotiestirteile  der  Indier,  Mtinchen, 
bay,   1880,  pp.    16,    20,   66,    75,    134,        1866. 


MEMORANDUM   ON    MR.    CAIRD'S    REPORT  427 

judicial  purit\-,  and  are  also  great  educational  agencies,  as 
furnishing  examples  of  a  just  and  rational  method  of  ascer- 
taining facts.  But  these  courts  it  is  now  proposed  to  close 
against  the  bulk  of  the  j^opulation.  It  is  true  that  Mr.  Caird 
has  some  dream  of  a  system  of  '  supervision,'  which  is  to 
maintain  all  that  was  good  in  the  village  courts  and  to  remedy 
all  that  was  bad.  Here  we  have  the  other  branch  of  the 
dilemma  presented  to  him.  Nothing  short  of  a  system  of 
appeal  and  control  strongly  resembling  that  now  existing 
would  keep  these  courts  effectually  in  order  ;  and  I  have  a  very 
strong  suspicion  that,  if  Mr.  Caird  were  required  to  furnish  us 
with  a  picture  of  the  sort  of  tribunals  he  contemplates,  with  all 
the  details  filled  up,  it  would  turn  out  to  be  already  provided 
for  in  the  Code  of  Civil  Procedure. 

It  cannot  for  a  moment,  I  think,  be  doubted  that  an)' 
forcible  revival  of  an  obsolete  mode  of  administering  justice 
would  be  profoundly  unpopular.  This  conclusion  is,  indeed, 
involved  in  the  reasons  for  the  proposal ;  for  if  the  Natives  of 
parts  of  India  resort  too  freely  to  the  British  Indian  courts, 
I  presume  that  it  is  because  they  like  to  have  recourse  to 
them.  Meantime,  I  do  not  in  the  least  believe  that  the\' 
would  relish  the  substitute.  I  agree  with  the  remark  of  a 
Native  writer,  quoted  in  the  debate  on  the  Dekkhan  Ryots' 
Relief  Bill,  that  in  days  when  Hindu  sons  will  not  submit  to 
their  father's  exercising  his  patria  potestas  over  them  in  his 
house,  it  is  not  probable  that  Hindu  fathers  will  submit  to  the 
artificial  and  conventional  authority  of  the  council  and  head- 
man of  their  village.  If  these  outworn  institutions  were  in- 
vested by  Government  with  a  new  authority,  I  should  expect 
that  one  of  their  first  results  would  be  a  series  of  those  local 
commotions  which  are  produced  in  India  by  the  sense  of  a 
denial  of  justice. 

I  do  not  question  Mr.  Caird's  good  intentions  towards  the 
Natives  of  India.  I  feel  assured  that  his  philanthropy  is  shown 
in  suggestions  for  the  improvement  and  extension  of  Native 
agriculture,  which  have  but  a  slender  connection  with  these  re- 
commendations of  root-and-branch  changes  in  Indian  govern- 
ment and  administration.  But  I  cannot  but  see  that  some 
of  his  opinions  have  been  taken  from  men  who  have  formed  a 


428  MINUTES 

very  low  estimate  of  Native  rights  and  Native  capacity.  I,  too, 
have  met  in  India  the  sort  of  man  who  is  constantly  arguing, 
with  Mr.  Caird.  that  the  distinction  of  race  between  Natives 
and  Europeans  should  be  recognised  in  all  things,  and  I  have 
observed  his  admiration  of  the  Dutch  system  of  management 
in  Java,  about  which,  however,  he  did  not  seem  to  know  much 
except  the  fact — known,  I  imagine,  to  Mr.  Caird  also  {see 
*  Notes  by  the  Way,'  p.  726) — that  it  rested  on  forced  labour. 
Mr.  Caird,  however,  is  evidently  not  aware  that  the  conscience 
of  the  people  of  Holland  has  been  roused  of  late  on  this 
question,  and  that  one  of  the  political  parties  into  which  the 
Dutch,  like  other  communities,  are  divided  has  for  its  charac- 
teristic policy  the  reform  of  the  institutions  of  Java  and  their 
assimilation  on  many  points  to  those  of  India.  As  to  the 
Egyptian  system,  I  can  but  recall  the  conclusions  of  a  friend 
of  mine  who  carefully  observed  it,  with  the  aid  of  an  experi- 
ence of  India  gathered  during  twice  as  many  years  of  residence 
in  the  country  as  Mr.  Caird  has  passed  weeks  ;  and  he  came 
away  from  Egypt  with  a  very  good  opinion  of  its  solvency, 
but  with  a  determination  never  to  hold  a  single  security  on 
which  the  interest  was  provided  by  such  gross  oppression. 
Let  me  add  that  these  assertions  of  an  ineradicable  difference 
between  the  different  races  of  mankind  belong  to  a  now 
exploded  philosophy.  A  great  number  of  researches  carried 
on  in  a  great  number  of  fields  tend  to  prove  that  the  con- 
spicuous superficial  differences  which  for  the  time  show  them- 
selves are  far  more  due  to  external  circumstances  than  to 
human  nature.  All  men  under  the  same  conditions  behave 
very  m.uch  in  the  same  way.  And  men  are  in  nothing  so 
like  one  another  as  in  their  appreciation  of  what  is  justice.  I 
trust  that  no  English  statesman  will  ever  convince  himself 
that  there  can  be  two  ideals  of  justice  for  India  ;  but,  if  he 
does,  he  must  persuade  the  English  Parliament  to  agree  with 
him.  I  am  almost  ashamed  to  appeal  to  the  authority  of 
Parliament  on  such  a  point,  but  at  present  its  pleasure  is  that 
there  shall  be  the  same  '  general  system  of  judicial  establish- 
ments for  all  persons  whatsoever,  whether  Europeans  or* 
Natives,'  in  India,  and,  as  far  as  '  the  rights,  feelings,  and 
peculiar  usages  of  the  people '  will  admit,  the  same  system  of 


MEMORANDUM    ON    MR.    CATRD'S   REPORT  429 

law.     {See  the  recital  which  begins  s.  53  of  3  &  4  Will.  IV., 
c.  85.) 

There  is  one  other  subject  touched  upon  by  Mr.  Caird 
which  I  should  wish  to  notice  before  closing  this  paper.  It 
happens  that,  through  accident,  I  have  had  occasion  to  observe 
narrowly  the  mode  in  which  the  Indian  Civil  Service  is 
recruited,  and  the  method  of  training  it.  Mr.  Caird  has  now 
proposed  that  nine-tenths  of  the  Civil  Service  (Report,  p.  29) 
should  be  taken  from  the  Army.  When  he  says  that  the 
Indian  Civil  Service  has  already  'much  of  a  military  cha- 
racter,' he  means,  I  presume,  to  remind  us  that  there  are  many 
military  officers  in  civil  employment  in  India.  This,  of 
course,  is  the  fact ;  and  it  is  most  unquestionably  a  great 
advantage  to  the  Indian  Government  to  be  able  to  supplement 
their  Civil  Service  by  calling  in  gentlemen  who,  after  some 
experience  of  the  Army,  have  found  civil  occupations  more 
congenial  to  their  taste  than  military  employment.  But  it 
seems  to  me  that  all  which  is  possible  would  be  done  to  destroy 
this  advantage  if  what  is  now  occasional  become  regular  and 
systematic.  For  the  inevitable  result  would  be  that  a  certain 
number  of  young  men  would  every  year  enter  the  Army  who 
had  from  the  first  no  serious  intention  of  discharging  military 
duties.  Of  this  the  military  authorities  would  be  the  first  to 
complain,  and,  as  it  appears  to  me,  most  reasonably  ;  but 
where  would  be  the  advantage  to  the  Civil  Service  ?  At 
present  both  the  British  Army  and  the  Indian  Civil  Service 
are  recruited  by  competitive  examinations  of  much  the  same 
general  character  under  the  superintendence  of  the  Civil 
Service  Commissioners.  The  cadets  then  go  to  Sandhurst  or 
Woolwich  ;  the  civilians  (whom  Mr.  Caird  describes  as  coming 
to  India  '  fresh  from  the  schools  ')  go  to  Oxford  or  Cambridge, 
or  some  other  university,  where  they  pass  a  probationary 
period  in  studying  the  rudiments  of  Indian  languages,  and  in 
obtaining  some  knowledge  of  Indian  usage  and  Indian  law, 
Hindu,  Muhammadan,  and  Anglo-Indian.  Are  we  to  under- 
stand that  the  latter  class  would  be  better  qualified  if  they 
substituted  for  these  studies  a  training  at  the  military  colleges 
in  fortification,  gunnery,  and  drill  .''  Under  the  existing 
method  of  occasional  selection  from  the  Army,  there  may  be 


430  MINUTES 

real  gain  in  training  a  certain  number  of  public  servants  who 
have  had  two  distinct  experiences,  one  military  and  one  civil. 
But  this  is  because  both  careers  have  been  seriously  followed. 
If  Mr.  Caird's  plan  were  adopted,  the  military  service  would  not 
be  followed  seriously,  and  the  preliminary  training  would  be  far 
inferior  for  general  Indian  purposes.  It  seems  to  me  a  contri- 
vance for  at  once  spoiling  both  the  Civil  Service  and  the  Army. 
As  against  Mr.  Caird,  I  am  compelled  to  appear  as  a 
general  apologist  of  Indian  law,  administration,  and  govern- 
ment. As  a  fact,  however,  there  are  many  things  in  them 
which  I  would  gladly  see  changed,  and  hope  to  see  changed 
some  day,  though  the  reforms  I  desire  would  appear  trifling 
when  compared  with  the  radical  innovations  suggested  by  Mr. 
Caird.  Thus,  while  I  look  upon  the  notion  of  abolishing  the 
Supreme  Government  of  India  as  chimerical,  I  should  rejoice 
to  see  the  independence  of  the  Local  Governments  still  further 
extended  on  the  lines  of  Lord  Mayo's  policy.  Again,  although 
the  abridgment  of  the  discretionary  powers  of  officials  is 
inevitable,  in  my  judgment,  as  India  advances  in  knowledge, 
wealth,  and  commercial  activity,  I  believe  it  to  be  the  greatest 
of  mistakes  to  fetter  it  too  soon,  or  under  the  wrong  con- 
ditions. Further,  the  litigiousness  of  populations  belonging 
to  the  same  social  stage  as  the  people  of  India  is,  so  far  from 
being  extraordinary,  a  very  frequently  observed  phenomenon  : 
it  appears  to  be  their  over-indulgence  in  the  luxury  of  justice 
which  is  comparatively  new  to  them  ;  but  unquestionably  it 
may  be  carried  to  excess.  The  true  remedy  is,  however,  to 
be  found,  not  in  a  violent  recoil  to  the  institutions  of  barbarism, 
but  in  the  adoption  of  some  of  the  newest  legal  expedients  of 
civilisation.  I  have  the  greatest  faith,  for  example,  in  the 
system  of  registration  which  is  gradually  spreading  over 
India,  and  which  nips  litigation  in  the  bud  by  causing  the 
good  faith  and  regularity  of  transactions  to  be  sifted  once  for 
all  in  their  initial  stage.'     Nor  would  I  deny  that  the  working 

'   See  above,  p.    128,    and  compare  to  satisfy  himself  as  to   the  identity  of 

the  Registration  Act,  III.  of  1877,  sec.  the  persons  appearing  before  him  and 

34,  which  directs  the  registering  officer,  alleging   that  they  have   executed  the 

before  the  registration  of  a  given  docu-  document  ;  and,  (3)  in  the  case  of  any 

ment,  (i)  to  inquire  whether   or  not  it  person   appearing  as  a  representative, 

was  executed  by  the  persons  by  whom  assign,  or  agent,  to  satisfy  himself  of  the 

it  purports  to  have  been  executed  ;  {2)  right  of  such  person  so  to  appear. 


MEMORANDUM    ON    MR.    CAIRD'S    REPORT  43 1 

of  the  Code  of  Civil  Procedure  among  very  ignorant  and  help- 
less populations  like  the  peasantry  of  the  Dekkhan  requires 
to  be  carefully  watched.  I  have  heard  the  Code  called 
technical  by  those  who  have  not  read  it,  or  who  have  not 
understood  it,  or  who  have  not  compared  it  with  other 
systems  of  procedure ;  but  it  is,  in  fact,  one  of  the  simplest 
systems  in  the  world,  and  it  is  its  very  simplicity  which,  in  the 
case  supposed,  may  be  in  fault.  For  it  resembles  other  bodies 
of  similar  rules  framed  by  civilised  legislators  in  this — there  is 
a  point  beyond  which  it  does  not  protect  the  defendant  who 
persistently  neglects  or  refuses  to  avail  himself  of  the  oppor- 
tunities of  defence  presented  to  him.  For  persons  entirely  at 
the  mercy  of  men  more  powerful  and  more  unscrupulous  than 
themselves,  it  may  turn  out  that  a  specially  protective  pro- 
cedure is  required.  The  new  measure  applied  by  the  Indian 
Legislature  to  the  Dekkhan  peasantry  ^  appears  to  me,  I  must 
own,  somewhat  unduly  overlaid  with  protective  procedure, 
and  I  am  not  without  misgivings  as  to  its  operation.  Never- 
theless, carefully  watched,  as  I  trust  it  will  be,  it  may  yield  us 
some  valuable  lessons  regarding  the  best  way  of  adjusting 
legal  procedure  to  the  circumstances  of  some  special  classes. 
Where  the  population  is  not  of  the  character  attributed  to  the 
indebted  Dekkhan  ryots,  the  provisions  of  the  new  law  would, 
I  am  satisfied,  prove  quite  intolerable. 

STUDY  OF  PERSIAN 

January  19,  1864. 

The  following  minute  was  inadvertently  omitted  from  its  proper 
place,  which  is  next  after  the  minute  on  the  legal  education  of  Civil 
Servants,  supra,  pp.  308-310. 

Mr.  Harington's  argument  on  the  question  at  issue  seems 
to  me  conclusive. 

The  points  which  he  establi.shes  are  these  : — 

T.  That   a   knowledge   of   Persian    was   originally   made 
compulsory  for  a  reason  which  has  lost  its  force. 

2.  That  the  retention  of  the  obligation  is  attributable  to  an 
accident,  or  rather  to  a  series  of  accidents. 
'  Act  XVII.  of  1879. 


432  MINUTES 

3.  That  the  argument  for  retaining  it,  if  carried  to  its 
consequences,  would  prove  the  officers  of  the  Hindustdni- 
speaking  province  of  Bihar  to  be  generally  incapable  of  dis- 
charging their  duties. 

4.  That  the  argument  fails  wholly  in  its  application  to 
military  officers,  who  discharge  judicial  and  administrative 
functions  pari /^assu  as  the  civilians  in  those  districts  of  India 
in  which  the  purest  Hindustani  is  spoken. 

5.  That  the  footing  on  which  it  is  proposed  to  place 
Persian  is  exactly  that  on  wHich  it  is  placed  with  respect  to 
military  officers,  who  all  but  monopolise  the  political  appoint- 
ments. That  footing  is,  that  its  acquisition  should  be  volun- 
tary, it  being  understood  that  nobody  who  has  not  passed 
this  voluntary  examination  is  to  be  preferred  to  employment 
for  which  a  knowledge  of  Persian  is  demonstrably  required. 

In  short,  it  is  evident  that  the  reasoning  by  which  the 
compulsory  obligation  to  study  Persian  is  advocated  proves  a 
great  deal  too  much.  And  this,  I  take  it,  will  always  be  the 
fate  of  all  arguments  which  are  invented  by  an  after-thought, 
when  the  original  considerations  for  which  they  are  substi- 
tuted have  lost  force  or  have  disappeared. 

The  replies  from  the  North-Western  Provinces  and  the 
Panjab  are  much  what  I  expected.  Those  officers  who  are 
for  retaining  the  compulsion  do  not,  for  the  most  part,  allege 
more  than  that  Persian  is  important — a  proposition  which 
nobody  has  denied.  The  gentlemen  who  go  further  than  this 
are  gentlemen  of  great  reputation  for  a  literary — as  distin- 
guished from  a  merely  practical — acquaintance  with  Oriental 
languages. 

It  would  not  have  been  difficult  to  divine  this  result. 

The  opinion  which  has  impressed  me  most  is  that  of  the 
distinguished  Judicial  Commissioner  of  the  Panjab.  '  Life,' 
says  Mr.  Cust,  '  is  short  :  Art  is  long  ;  in  this,  as  in  other 
things,  we  must  have  a  minimum  for  the  many,  and  a 
maximum  for  the  few.  We  must  not  waste  the  precious 
years  of  a  man's  life  between  twenty  and  twenty-three,  when 
he  is  able  to  acquire  anything,  and  what  he  acquires  remains 
for  his  life.  I  am  no  opponent  of  Oriental  studies.  I 
devoted  my  youth  to  them,  and  studied  with  success  all  the 


STUDY    OF    I'KRSIAX  433 

five  languages  above  alluded  to,'  and  Arabic  in  addition  ; 
but  I  sometimes  wish  now  that  1  had  studied  the  Roman  law, 
and  been  content  with  the  Hindu  law  in  English  translations 
instead  of  following  up  dead  Orientals  beyond  a  certain  point. 
I  wish  others  to  avoid  my  error.' 

This  pregnant  passage  goes  to  the  root  of  the  matter. 
The  simple  truth  is,  that  the  c()mi)uls()ry  study  of  Persian — a 
difficult  classical,  and  in  India  practically  dead,  language  of 
limited  though  considerable  usefulness — -stands  in  the  way  of 
any  effectual  reform  of  the  educational  curriculum  of  }-oung 
civilians.  In  particular,  it  obstructs  their  acquisition  of  the 
form  of  knowledge  most  urgentl)'  needed  in  the  India  of  the 
present  day — knowledge  of  law.  If  we  are  to  choose  between 
the  incapacity  of  a  Judge  to  decipher  without  aid  the  earlier 
records  of  his  Court,  and  his  incapacity  to  interpret  the 
bearing  on  them,  when  deciphered,  of  legal  principles,  the 
first  branch  of  the  alternative  involves  immeasurably  the 
lesser  evil. 

'   Sanskrit,  Persian,  Hindi,  Urdu,  and  Bengali. 


F  F 


INDEX 


ACADE.AIIE 

A    CADEMIE  des  Sciences  morales 

J~\_     et  politiques,  49 

Accademiadei  Lincei,  Maine's  member- 
ship of,  49 

Acquisition  of  territory  in  India,  397 

Actionable  wrongs.     See  Torts 

-Vets  passed  during  Maine's  tenure  of 
office,  24,  25.     See  Over-legislation 

-Vddresses  to  Calcutta  graduates,  29, 
34,  48 

-\djective  law,  province  of  code  of, 
172  ;  amendment  of,  241 

-Vdministration,  of  English  justice,  96  ; 
paralysis  of,  235,  245  ;  discretionary, 
246,  418.  Sc-e  Probate  and  Admi- 
nistration Act 

Admissibility  of  evidence,  rules  as  to, 
296 

-Adopted  son,  share  of,  237 

^Vdoption,  takes  place  of  testation,  35  ; 
son  born  after,  237  ;  succession  de- 
pendent on,  251  ;  Hindu  princes' 
right  of,  392 

Adultery,  divorce  for  husband's  simple, 
no;  spiritual,  136,  137 

-\dvice,  clanger  of  giving  good,  64 

Advocacy  in  India,  333.  See  Legal 
practitioners 

Advocate-(jeneral,  iSi  ;  position  of, 
185.      Sec  Cowie,  Mr.  T. 

-Vge  of  competition,  404 

Aged  men,  status  of,  63,  64 

Agency,  partnershij)  a  branch  of  law 
of,  221 

Agents,  difficulty  of  obtaining,  225, 
226 

Aggregate  of  natural  groups,  Indian 
population  is  an,  48 

Agrarian  policy,  oscillations  of  Indian, 
420 

Agriculture,  improvement  of  Indian, 
416 

Aitchison,  Sir  C.  U.,  385,  386 


ASCETICISM 

Ajmer  and  Merwara,  regulations  for, 
362 

Alienations  of  Indian  territory,  396 

Allodial  land,  conveyance  of,  55 

Alluvion  Bill,  54 

Alteration  of  rules,  246- 

Ambiguity,  of  rules  prescribed  by  exe- 
cutive, 242,  243  ;  of  the  term  '  right,' 
279 

Amending  Acts,  Bills,  236 

America,  Maine's  interest  in,  14 

American  Academy,  Maine's  member- 
ship of,  49 

Amphiktyony,  functions  of,  73 

Ancient  Latv,  Maine's,  20 

-Vncillary  powers,  304 

Andaman  and  Nicobar  Islands,  362 

Andrews,  Bishop,  3 

Anglican  Church,  156 

A iii:[/o- Indian  Codes,  The,  166,  nofc 

Annexation  of  territory,  360 

Anthropology,  bond  between  history 
and,  76 

Anticipation,  wife's  power  of,  203 

Apostles,  the,  26 

Appeal  to  Queen  in  Council,  no 

Appeals,  extravagant  facilities  for, 
212  ;  on  questions  of  fact,  213 

Appellate  courts,  results  of  delegating 
government  to,  244,  245 

Arbitration,  abating  war  by,  72  ;  con- 
templated by  Civil   Procedure  Code, 

425 
Argyll,  Duke  of,  41 
.Armaments  in  peace,  73 
Arrangement  of  the  Substantive  Civil 

Law,  53 
Arrears  in  Indian  appellate  courts,  ^11, 

313 
Arnndmcs    Caini,    Maine    contributes 

to,  6 
Asceticism     of      European     societies, 

139 

F  r  2 


436 


^[EMOTR    OF    SIR    IIENRV    MAINE 


Assam,  Europeans  in,  190;  regulations 
for,  362 

AthenKum  Club,  23 

Atkinson,  Mr.,  326 

Attempts  to  murder,  259 

Audit  of  official  trustee's  accounts,  126 

Austin,  assumes  jiermanency  of  legal 
conceptions,  60;  the  sense  in  which 
he  uses  '  law,'  71 ;  relative  weight 
of  his  opinion,  172  ;  Lis  theory  as  to 
the  proper  distribution  of  law,  172, 
173  ;  would  not  have  classed  Specific 
Performance    with    substantive   law, 

173'  174 
Austria,  289 

Authority  of  names,  123,  125 
Auxiliary  pacts,  205 


BADEN-rOWELL,  Mr.,  268,  note 
Bagehot,  Mr.  Walter,  15 
Baluchistan,  regulations  for,  362 
Bar,    the    Native,    243  ;   the    English, 

333.      See  Legal  practitioners 
Barbarian  codes,  70;  customs,  193 
Barbarism,  resuscitation  of,  426 
Barbarous  laws  do   not   recognise  pre- 
scription, 277 
Barley,  sowing,  43 
Barracks,  begging  at  gates  of,  73 
Beadon,  Sir  Cecil,  372-374 
Beneficial  occupancy  ofland,  339,  340 
Bengal,  legislation  for  wilder  parts  of, 
362  ;  problems  in,   375  ;  business  of 
Government  of,  376 
Bengal  legislature,  362-371 
Bengalis,     their    desire    to    write    the 
finest    English,     4  ;     leavened    with 
European    ideas,  367  :  Bachelors  of 
Arts  or  Laws,  38S  ;  their  intelligence, 

254,  327 

Bentham,  Jeremy,  40,  46,  60,  76,  172; 
opinion  against  judicial  taxation  pro- 
duced l)y,  249  ;  his  panacea  for  the 
suppression  of  fees  and  costs,  249  ; 
his  belief  that  litigation  is  owing  to 
the  complexity  of  law,  250 

Benthamism,  76 

Betrothal,  marriage  after  mere,  142 

Bhaunagar,  325 

Bhils,  193 

Bigamy,  106,  131 

Bihar,  431 

Black  Act,  190 

Black  Hole,  the  tragedy  of  the,  371 

Blockade,  right  of,  72 

Bloxam  v.  Pell,  222 

Board  of  Revenue,  Calcutta,  372-374 


CAPRICES 

Board  of  Trade,  118 

Boehm,    Sir    Edgar,    his    medallion  of 

Maine,  74 
Bombay,  Council  of,  374 
Bombay,  regulations  for  wilder  parts  of, 

362 
Bona-fide  possession,  57 
Bonitarian  ownership,  57 
Borneo,  260 

Borrowing   by    East    India    Company, 
344  ;  by  Government  of  India,  345. 
See  Loans 
Brahmans,     extent    of    their    right    to 

happiness,  40  ;  inviolability  of,  43 
P>rahma-samaja,  285,  287 
Brandreth,  Mr.  E.  L.,  263,  268 
Breaches   of  contract,   criminal  legisla- 
tion against,  88 
Brehon  law  treatises,  42,  63 
Bright,  Mr.  John,  68 
Bristed,  his  Five  Years  at  an  Ejv^lish 

University,  9 
British   Indian  Association  of  Bengal, 

287,  292 
Buckle,  T. ,  his  demonstrations  regard- 
ing Indian  society  and  religion,  29 
Buddhists,  162 
Burden  of  proof  rests   on   advocate  of 

change,  414 
Burma,    local  legislature  for,    239  ;  re- 
gulations for,  362 
Buxton  V.  Lister,  165,  note 


CACHAR,  Europeans  in,  190 
Caesar    at    the    Rubicon,    4  ;  liis 

account  of  the  Druids,  44 
Caird,    Mr.   James,    his   report   on    the 

condition  of  India,  412 
Cairns,  Lord,  25 
Calcutta,    climate    of,    371,     382.      See 

Black  Hole 
Calcutta       University,       Maine     Vice- 

Chancellor  of,    29,   32-34  ;    Maine's 

addresses  to,  29,  34,  48 
Calvin,  155 
Cambridge,  3 
—  Duke  of,  354 
Cambridge  Essays,  17 
Campbell,    Sir   George,    37,    203,    206, 

403 
Cannes,  Maine's  death  at,  73,  78 
Canning,  Lord,  132,  339 
Canon  law,  150  ;  authority  of,  155 
Capital,  attraction  to  India  of  British, 

347 
Capital  of  India,  371 
Caprices  of  English  law,  176,  178 


INDEX 


437 


CAPTURK 

Capture  at  sea  of  private  property,  72 

Case-law,  245 

Cashmere,  succession  to  state  of,  391- 

394 

Caste,  readmission  to,  106.  .SVv  Inter- 
marriage, Outcastes 

Caversham  Grove,  2 

Cayley,  Mr.  Arthur,  25 

Celibate  class,  law  tending  to  produce 
a,  139,  146 

Celtic  Society,  44,  45 

Central  Provinces,  local  legislature  for, 
239  ;  settlement  of,  275 

Certainty  aimed  at  by  Indian  codifica- 
tion, 61  ;  liked  by  natives,  61,  62 

Certificated  schoolmasters,  327 

Cession  of  portions  of  British  India, 
395-400 

Change,  st'c-  Burden  of  proof;  Human 
nature 

Changes  in  modern  India,  241,  242 

Chaplain  of  jails,  124 

Chief  Commissioners,  376 

Chief  Court  of  the  Panjab,  245,  269, 
272,  335 

Children,  marriages  of,  133,  142.  See 
Legitimacy 

China,  364,  426 

Chitty,  Mr.  Thomas,  25 

Christian  Church,  consolidation  of,  71 

—  marriage,  law  of,  152 

Christianity,   offence   of  conversion  to, 

'59. 
Christ's  Hospital,   Maine's  nomination 

to,  2  ;  monument  to   Maine  erected 

in,  78 
Circuits  among  Small  Cause  Courts,  211 
Circulars,     Panjab    civil    procedure    a 

mountain  of,  232,  245 
Civil  delicts,  173 
Civil  disabilities,  dissidents  from  native 

religion  relieved  from,  286 
Civil  liability  of  military  officers,  327 
Civil  marriage  of  natives,  285-294  ;  of 

Europeans,  288,  289 
Civil  servants,  legal  education  of,  308- 

.3.1° 
Civil  Service  Commissioners,  310 

Civilisation,  64.  See  Ereedom  of  con- 
tract. Liberty  of  testation 

Clans  of  Rajputana,  origin  of,  Si 

Clark,  Mr.  W.  G.,  8 

Classification,  legal,  178 

Climates  of  India,  79,  38 1,  382.  See 
Calcutta 

Cockerell,  Mr.  F.  R.,  255,  256,  257, 
295.  299 

Code  Napoleon,  55,  196 


CONIK.MPORAKV 

Codes,  Indian,  54  >io/e,  421  ;  should  be 

learned  by  young  civilians,  411.     See 

Evidence    Act,   Explanations,    Penal 

Code,  Specific  Relief  Act,  .Succession 

Act 
.  C(idificati(;n   in   India,  49  ;  benefits  of, 

60,  61  ;  certainty  aimed  at  by,  61  ; 

reduces    bulk    of  law,    231  ;    makes 

law  intelligible  to  the  people,   231  ; 

hardship  from  stoppage  of,  233 
Cogliolo,  76 
Collaterals,    succession    of,    to    Hindu 

sovereignty,  392,  393 
'  College,'  meaning  of,  385,  3S6 
Colonsay,  Lord,  102,  103 
Comity  of  nations,  92 
Commercial    activity   demands    unifor- 
mity in  interpretations  of  law,  418 
Commercial  instruments,  stamj)  duties 

on,  299 
—  usage  an  agent  in  modifying  laws,  76 
Commissioners,     their    jurisdiction     in 

divorce,  105 
Commissions  for  examination  of  Native 

ladies,  158,  159 
Common  Law  Procedure  Acts,  165,  317 
Companies  Act,  230,  231 
Comparative   method.   Ancient  Laio  a 

type  of,  20,  21 
Compensation,     for     occupancy-rights, 

282  ;  for  manorial  dues,  282 
Competition,     system    of,     402,     403  ; 

maximum  age    for,    407  ;  failure  in, 

407 
Complexity  of  usages,  pride  of  Natives 

in,  251 
Compurgation,  46 

Concessions  to  public  companies,  343 
Concubinage,  135 
Confession  of  Augsburg,  1 56 
Confirmation  of  divorce   decrees,  105  ; 

of  capital  sentences,  105 
Confusion  of   uncodified    Indian    law, 

232 
Congresses  of  governors,  &c. ,  383 
Conjugal  society,  suit  for  restitution  of. 

Connivance  in  divorce  cases,  112 
Conscience,  rights  of,  161 
Conservatism,  French,  12 
Consolidation  of  Indian   laws,  I14  ;  of 

British  statutes.  1 18 
Constitution  of  United  States,  66  ;    of 

British  India,  413 
Construction  of  wills,  258  ;  of  contracts. 

Contamination  of  jails,  125 
Contemporary  Kevieic,   The,  20 


438 


MEMOIR   OF    SIR    HENRY   MAINE 


CONTRABAND 

Contraband  of  war,  72 

Contract,  earl)'  history  of,  21  ;  modern 

conception    of,    21  ;    doininiinii    did 

not  pass  by  mere,  59 

—  criminal  legislation  against  breach 
of,  89 

—  freedom  of,  90  ;  exact  performance 
of,  91  ;  to  marry,  166,  note  3.  See 
Agency,  Dominitim,  Market  overt, 
Presumption,  Specific  performance 

Contract  Act,  Indian,  366 

Contracts,  India  a  country  of  small, 
176,  177  ;  construction  of,  330 

Conversion,  what,  162  ;  of  Hindus  to 
Muhammadanism,  289 

Converts  to  Christianity,  alleged  moral 
purification  of,  140  ;  practically 
monogamists,  141.  See  Re-mar- 
riage 

Conveyance  by  entry  in  a  register,  57 

Convicts,  insane,  304  ;  pregnant,  304 

Con-way  v.  BeazLy,  103 

Cook,  Mr.  J.  D.,  n,  14,  15 

Coorg,  local  legislature  for,  239  ;  regu- 
lations for,  362 

Copyhold  Commission,  2S2 

—  tenure,  52,  56,  339,  340 
Coruhill  Magazine,  40 
Cornwall  Gardens,  38 
Cornwallis,  Lord,  417 

Corpus  Juris  of  English  law,  233 

Corpus  professorship  of  jurisprudence, 
36,  63 

Cortez,  17 

Cosmopolitan  Club,  22 

Costs.    Sec  Fees,  Joint  Stock  Company 

Council  of  India,  work  of,  41,  48 

Councils  of  Madras  and  Bombay,  374  ; 
more  than  consultative  bodies,  376 

County  Courts,  their  power  to  decree 
specific  performance,  168  ;  effect  of 
establishing,  317  ;  increase  of  their 
jurisdiction,  319 

Couper.  Sir  George,  295 

Courselle  Seneuil,  76 

Court  of  Directors,  16,  17,  321-322. 
Sec  East  India  Company 

Court-fees,  256 

Courts,  Anglo-Indian,  growing  influ- 
ence of,  243  ;  schools  of  veracity 
and  judicial  purity,  426  ;  educational 
agencies,  427.  Sec  Expediency,  First 
instance 

Courts-martial,  349 

Courts  of  record,  334 

Cowie,  Mr.  David,  285,  287,  306 

—  Mr.  T.,  Advocate-General  of  Bengal, 
285,  287,  306,  330,  112,  395 


Craven  scholarship,  3,  8 

Criminal  courts,  stamp  on  application 
to,  248,  252 

Criminal  penalty,  167 

Criminals  tend  to  form  themselves  into 
a  class,  122 

Criticism  of  Bills,  advantages  of,  1 15 

Crowd,  instincts  of,  183 

Crown  can  alienate  portions  of  British 
India,  396.     See  Sovereign 

Crown  colonies,  363 

Crusades,  miscarriage  of,  16 

Cust,  Mr.  R.  N.,  142,  432 

Custom,  verifiable  phenomena  of 
ancient,  38-39  ;  loose  Native  no- 
tions of,  106  ;  mass  of  population 
live  by,  129  ;  protection  of  unjustifi- 
able, 190;  enactments  affecting,  229  ; 
variety  of,  232  ;  decisions  by  native, 
232  ;  harmony  of  codes  with,  233  ; 
foundation  of,  280  ;  when  the  poor 
and  ignorant  are  authorities  on,  338  ; 
regulating  the  tenure  of  land,  338. 
See  Commercial  usage,  Complexity 

Customary  rights,  280 


DALHOUSIE,  Lord,  286,  363 
Damages,  remedy  by  award   of, 
85  ;    characteristics    of   decrees    for, 
167  ;  for  breach  of  contract  to  serve, 
306,  307 
Datiiodar   Gordhaii  v.  Dcoram   Kanji, 

395 
Dareste,  ^I.  Rudolphe,  76 
Darwin's  Origin  of  Species,  74 
Dawkins  v.  Lord  Rokeby,  331 
Death,  religious,  134;  Hindu  marriage 

not  dissolved  by,  163 
Debating  societies,  26 
Debts,   due  to   wife,    201  ;  liability  for 

father's,  307 
Decentralisation    of  finance,   354-358, 

415 
Declaration  of  Paris,  the,  71 
Declaration  of  right,  107,  108 
Declaratory  decrees,  108 
Decrees  unexecuted,  167 
Dekkhan  Ryots  Act,  431 
Delays  in  court.      See  Demoralisation, 

Injustice 
Delegation  of  power  of  pardon,  301,  302 
Delivery   required    to   pass  do/i/iniiiiii, 

59 
Democracy,  duration  of,  67 

Democratic  societies,  scientific  thought 

in,  67 
Arjfj.oyfpovTes,  64 


INDEX 


439 


DEMORALISATIOX 

Demoralisation  caused  by  delays  in 
court,  311,  312 

Dcnison,  Sir  William,  23 

Despotism,  responsibilities  of,  364  ; 
concrete  form  of,  368 

De  Tocqueville,  39,  74 

Dharna,  Irish  analogue  to,  42 

Dickens,  Colonel,  344 

Dickenson,  Maine's  portrait  by  Afr. 
Lowes,  74 

Difficulty,  of  popular  government,  66  ; 
of  establishing  a  new  domicile,  lOi  ; 
attending  legislation,  129  ;  of  go- 
verning India,  377 

Dilaloriness  of  judicial  legislation,  51 

Diplomacy,  19;  European,  1 19;  of 
India,  377 

Direct  taxation,  359 

Discipline  of  jails,  124 

Disclaimer  of  sovereignty,  322 

Discretionary  administration,  decay  of, 
246  ;  inconsistent  with  existence  of 
courts  and  lawyers,  246  ;  repugnance 
of  Natives  for,  247,  418  ;  preference 
of  officials  for,  418 

Disgraceful  punishments,  122 

Disraeli,  Mr.,  12,  26 

Distress,  ancient  Irish  law  of,  42 

District  Courts,  their  jurisdiction  in 
divorce,  104 

Diversity  recognised  by  Indian  codes, 
61  ;  between  Indian  populations,  239 

Divorce,  91  ;  foreign  decrees  of,  93, 
103,  112  ;  for  husband's  adultery, 
no;  (i  viensa  et  thoro,  137,  138; 
Roman  formula  of,  138;  by  Act  of 
Parliament,  318 

Documentaiy  evidence,  129 

Documents  of  international  transac- 
tions, 19,  399 

Domicile  a  function  of  time  and  inten- 
tion, loi  ;  provisions  of  Indian  Suc- 
cession Act  on  new,  102  ;  personal 
status  follows,  92,  100 

Dominium  did  not  pass  by  mere  con- 
tract, 59 

Donations  inter  viriiin  et  jixoi-em,  207 

Doubts  suggested  by  older  law  of  India, 

243 
Dower,  201  ;   and  thirds,  206 
Drafting  of  Indian  laws,  25,  26,  246 
Druids,  44 
Dufif,  Dr.,  162 
Dumas,  Alexandre,  decreed  to  write  a 

novel,  166 
Dupleix,  17 

Durand,  Sir  H.,  35,  36,  379,  380 
Dyslogistic  terms,  350 


):UROI'E.\N 

JI^A  Rl.  V  History  of  Institutions,  42 
Early  Law  and  Custom,  Maine's 
Dissertations  on,  6}, 

Easements  Act,  54,  note 

East    India    Company,    16,    17  ;      dis- 
claimer by,  322  ;  borrowing  by,  344  ; 
accpiisition   and   cession   of  territory 
^  by,  397 

Economy  of  ( "■overnment  servants' 
health  and  nerve,  3S2 

Education,  Maine's  services  to  Indian, 
32  ;  costliness  and  inefficiency  of, 
309 ;  cesses  for,  356.  See  Inns  of 
Court,  Institutions,  Moral  education 

Educational  Service,  Indian,  325-327. 
See  Rank 

'  Egyptian  Druids,'  44 

Eldon,  Lord,  effect  of  his  dilatoriness, 
312 

Elgin,  Lord.  23,  115,  341,  378,  383 

Ellenborough,  Lord,  4 

Elphinstone,  Colonel,  391 

Emerson,  R.  W. ,  Maine  succeeds  in 
Institut  de  France,  49 

Emigration  of  Native  laljourers,  114 

Emperor  of  Germany,  323 

Encumbrances,  search  for,  130 

English  bar,  333 

English  character  aftected  by  trial  by 
jui-y,  190 

English  justice,  administration  of,  96 

English  law,  shapelessness  of,  34  ; 
caprices  of,  176,  178  ;  common-sense 
constitutes  mass  of,  198  ;  defects  of, 
198;  its  difficulty  and  compass,  233  ; 
a  name  for  rules  disliked  by  Indian 
(ifficials,  417.      See  Case-law 

Englisli  law  of  evidence,  315,  316 

English  lawyers,  their  contribution  to 
the  art  of  practical  justice,  191  ;  to 
scientific  jurisprudence,  315,  220 

English  legislation,  220 

English  state  papers,  19 

l-2nglish  style,  5 

English  Universities,  386 

Entails  in  Kiance,  196 

Enthusiasm,  alleged  bursts  of  Native, 

391 
Epigrams  by  Maine  3,  5 
Equality,  application   of  principle   of, 

40  ;  origin  of  theory  of  human,  45  ; 

between  the  sexes,  208 
Equitable  defences,  169 
Equity  to  a  settlement,  195 
Erie,  Chief  Justice,  192 
Ethical  confusetl  with  legal  rules,  232 
Eurojiean    ISritish    subjects,    power  of 

Native  States  to  try,  400  ;   their  ex- 


440 


MEMOIR    OF    SIR    IIENRV    MAINE 


EUROPEAN 


emption  from  ordinary  criminal  tri- 
bunals, 191.     Si-c-  Assam 

European  criminals,  190 

European  society,  asceticism  of,  139 

Evidence,  law  of,  294-300 ;  English 
law  of,  46  ;  documentary,  129  ; 
grows  weaker  as  it  grows  older,  278  ; 
record  of,  314.  See  Admissibility, 
Exclusion,  Hearsay,  Oral  testimony, 
Paper  evidence 

Evidence  Act,  Indian,  353 

Evolution,  jurisprudence  subject  to  law 
of,  60  ;  pregnant  conception  of,  74 

Exactness    required    by    High    Courts, 

243 
Examining  bodies,  386 
Exchange  of  Indian  territory,  397 
Exclusion  of  evidence,  rules  as  to,  297 
Exeter  Hall,  17 
Exhibitions,  408 

Expediency,  Courts  can  only  j^ay  inci- 
dental regard  to,  244 
Expensiveness  of  judicial  legislation,  51 
Experience,  preserved  by  old  men,  64 
Explanations  in  Indian  codes,  220 
Extravagance    of  Indian  railway  com- 
panies, 344  ;  of  Local  Governments, 
357  ;  of  Covernment  of  India,  358 
Extreme  cases,  systems  tested  by,  215 
Extreme  theories,  259 


FACTS,  the  despair  of  the  law-re- 
former, 46  ;    inquiries    into,   47. 
See  Questions  of  fact 
P'alse  accusations,  248,  253 
Eamily  idol,  290 
Family  rights,  193 
Fanatics,  262 

P'ancies,  finest,  how  formed,  5 
Fasting  to  enforce  demands,  42 
Father,  lial)ility  in  Oudh  for  debts  of, 

307 

¥ees  and  costs,  Bentham's  panacea  for 
suppression  of,  248 

Fell,  Mr.  David,  2 

Fellowships,  408 

Female  education,  391 

Feudal  property,  63 

Feudatories,  320 

Finance.  See  Decentralisation,  Pro- 
vincial finance 

Finances  of  India,  128,  256,  257,  258 

Financial  responsibility,  sense  of,  358 

First  instance,  mistakes  of  courts  of, 
215  ;  improvement  of  judges  of, 
316  ;  supervision  of  courts  of,  320. 
See  Moral  weakness 


First  principles,  modifications  of,  367 

Fives,  representation  by,  55 

Flogging.    .SV,'  Whipping 

Flowers  in  India,  31 

Forbes's  Oriental  Memoirs,  43 

Forced  labour  in  Java  and  Egypt,  428 

Foreign    decrees  of  divorce,    93,    103, 

112 
Foreign  law,  precedents  and  analogies 

belonging   to,    51  ;    immunity  from, 

324 

Foreign  territory,  21,  361 

Formula  of  divorce,  138 

Forsyth's  Cases  and  Opinions  on  Con- 
stitutional La-iC,  395 

Fragility  of  popular  governments,  66 

France,  13  ;  registration  of  sales  and 
mortgages  of  land  in,  55  ;  entails  in, 
196  ;  iiioreellenient  oi  land  in,  196  ; 
judicial  system  of,  213.  See  P'rench 
codes 

Fraud,  decrees  of  nullity  of  marriage 
on  ground  of,  109,  encouraged  by 
liberty  of  testation,  196  ;  resulting 
from  oral  wills,  251  ;  in  India,  422. 
See  Misrepresentation 

Fraudulent  breaches  of  contract,  85 

Freedom  of  contract,  social  progress 
connected  with,  90 

French  codes,  198,  200,  204.  See 
Code  Napoleon 

French  politics,  1 1 

Frere,  .Sir  Bartle,  346 

Friend  of  India,  The,  227,  note 

Fry,  on  Specific  Performance,  166,  7iote 

Fustelde  Coulanges,  his  Cite  Antique, 
76 


GAIUS,  Maine's  lectures  on  the 
Institutes  of,  14 

(iambetta,  on  the  expense  of  peace- 
armaments,  73 

Gambling,  public,  235  ;  litigation  a 
kind  of,  311 

(iaseous  condition  of  Hindu  law,   162 

Cieneral  legislation,  advantage  of,  90 

Generalisations,  Maine's,  28,  29,  81 

Generalities  becoming  more  and  more 
formidable,  248 

Gerant  of  a  commanditarian  partner- 
ship, 226 

German  Confederation,  323 

Cierman  Universities,  316 

Germany,  land-registration  in,  56,  58. 
See  Emperor  of  Germany 

repoi/crfo,  64 

Ghazis,  259-262 


I 


I 


IXDKX 


441 


C.LADSTONE 
(iladstone,    Mr.,    his    fiist  Irish    Land 

Bill,  37 

Glasson,  M.,  76 

Glosses  on  codes  of  non-rcgidaiion 
provinces,  232 

Good  government  depentling  on  ad- 
herence to  rule,  234 

Government  of  Bengal,  372-37<S 

—  of  India,  definitions  of,'  252; 
ephemeral  nature  of,  358 

Grand  Juries,  abolition  of,  179-192  ; 
original  constitution  of,  183  ;  pre- 
sentment of  nuisances  by,  183  ;  judi- 
cial functions  of,  1S3 

Grant  Duff,  Sir  M.  E.,  14,  22,  26,  30, 

37,  71,  73 

Grant  in  aid  principle,  3S9 

Gray,  the  poet,  3 

Greek  origins  of  all  mental  movements, 
30 

Greek  Church,  its  doctrine  as  to  remar- 
riage of  converts,  155 

Grey,  Sir  William,  376 

(jrotius,  Hugo,  18,  70 

Guaranteed  interest  on  Englisli  invest- 
ments, 345,   347,  348 


HABIT,  uniformity  of,  214 
Haileybury,  409,  410 
Halifax,  Lord,  22,  82 
Hallam,  Henry,  10 
Halliday,  Sir  Frederic,  41 
Harcourt,  Sir  William,  15,  68 
Hardwicke,  Lord,  165 
Harington,  Sir  Henry,  339 
Harrison,  Mr.  Frederic,  20,  69 
Hastings,  Warren,  74 
Hatherley,    Lord,    his    description    of 

domicile,  loi 
Hearsay,  298 
'  Heathen  marriage,  option  to  recognise, 

138,  146 
Heathenism,  spiritual  adultery,  136,  137 
Henley-on-Thames,  Maine  brought  up 

in,  2 
Hermae  Pastor,  137 
Hesse-Darmstadt,  land-registry  of,  56 
High  Courts,  taste  for   legality  fostered 

by,  235  ;  power  to  affect  jurisdiction 

of,    239  ;    supervision    exercised    by, 

243  ;     government    by,     244,     245  ; 

reports  of  decisions  of,  312 
Hill  climates,  38 1 


'  Another  such  definition  was  'a 
despotism  of  office-boxes,  tempered  by 
the  occasional  loss  of  the  key.' 


i\I)i:mxiI' ir.\i  i()\ 

Himalayan  tribes,  193 

Hindu  law,  162;  of  succession  to 
private  property,  392  ;  vagueness  of, 
420.  .SVf  Adoption,  Collaterals, 
Death,  Ordeals 

Hindu  jurists,  vagueness  of  writings  of, 
232 

Hindu  ordeals,  426 

Hindu  widows,  intolerable  life  of,  157, 
160 

Hindu  Wills  Act,  199,  nolc 

Hinduism,  a  social  system  sanctioned 
by  divine  ordinances,  162.  Sec  l>rah- 
mans,  Caste 

Histoi'y,  bonil  between  anliiropology 
and,  76 

Hobhouse,  Lord,  26,  164,  iwlc 

Hobhouse,  Sir  Charles,  248,  253 

Holloway,  Mr.  Justice,  228,  229 

Holtzendorf,  76 

Honorific  names,  64 

Honours  conferred  on  Maine,  41.  48,  49 

House-communities,  63 

Howard,  Mr.  E.  J.,  326 

Human  nature,  facts  of,  47  ;  perpetual 
change  not  in  accordance  with,  66 

Hundis,  rarity  of  dishonoured,  85 

Hungary,  1 1 

Hunter,  Sir  William,  his  Life  of  Lord 
Mayo,  2T,\  hKSeviii  Years  (f  Indian 
Legislation,  24  ;  his  Indian  Jllnssn/- 
vians,  40 

Husband  and  wife,  proprietary  inde- 
pendence of,  195;  personal  obliga- 
tions of,  209.  ^^6'  Anticipatit)n, 
Debts,  Divorce,  Donations,  Dower 

Hypothec,  58 


IGNORANCE  of  India,  39 
Ignorant    men    capable    only    of 
thinking  in  the  concrete,  2S0 
Ilbert,  Mr.  C.  P.,  26 
Immobility  of  Native  religions,  287-288 
Immovable  property,  public  transfer  of, 

5- 
—  — ,  devolution  of,  192.     .S'(r  Land 

Immunity  from  foreign  laws,  324 

Imperfectly-sovereign  states,  323 

Imj^erial  guarantee  for  Indian  debt,  415 

Implication  of  powers,  304 

Improper  marriages,  penalty  on,  293 

Improvement  of  languages,  389 

Improvidence  of  labouring  class,  307 

Incompetence  of  Indian  courts,  alleged, 

104 

Increase  in  Indian  legislation,  242 

Indemnification  of  officials,  246 


442 


MEMOIR   OF   SIR    HENRY   MAINE 


INDEPENDENCE 

Independence,  of  Native  Bar,  243  ;  of 
States  indivisible,  323 ;  of  Local 
Governments,  430 

Independent  sovereign,  what,  322 

India  Office,  41 

India,  growing  interest  in,  35  ;  im- 
portance of  knowledge  of,  38,  39  ; 
De  Tocqueville's  opinion  of  conquest 
and  government  of,  39  ;  was  singu- 
larly empty  of  law,  51  ;  strongest 
British  influence  now  working  in, 
83  ;  finances  of,  128,  256,  257,  258  ; 
moral  justification  of  our  occupation 
of,  229;  climates  of,  79,  381,  382; 
advocacy  in,  333;  capital  of,  371  ; 
acquisition  and  cession  of  territory 
in,  396,  397  ;  constitution  of,  414. 
See  Adoption,  Aggregate,  Agricul- 
ture, Borrowing,  Capital,  Diplomacy, 
Diversity,  Flowers,  Fraud,  Govern- 
ment, Individual  property.  Institu- 
tions, Jurists,  Law,  Legislation, 
Marriage,  Money-lending,  Natives, 
Perjury,  Press,  Quasi-international 
law,  Roman  Catholics,  Standard  of 
industry.  Theories,  Torture 

Indian  Civil  Service,  selection  and 
training  of  candidates  for,  41,  42, 
402-411  ;  recruiting  and  training  of, 
429 

—  Constitution,  how  it  should  be  dealt 
with,  414 

—  debt,  415 

—  Law  Commissioners  regard  specific 
performance  as  substantive  law,  172 

—  officials.  See  Discretionary  adminis- 
tration, Technical  language 

—  opinion,  whirligig  of,  284 

—  population,  an  aggregate  of  natural 
groups,  46 

—  railways,  342 

—  Succession  Act,  102 
Indistinctness      of     usage      regulating 

tenure  by  cultivators,  338,  339 
Individual  property  in  India,  406,  407 
Individualism,  spirit  of,  59 
Inductive  method,  35 
Infant  marriages,  immorality  of,  142 
Informations  ex  officio,  181 
Injustice  for  the  sake  of  seeming  to  be 

impartial,   161  ;  caused  by  delays  in 

court,  311 
Innovations     on    knowledge    accpured 

with  difficulty,  245 
Inns   of  Court,    readers  appointed  by, 

13  ;  legal  education  given  by,  309 
Insane  convicts,  304 
Institut  de  F^rance,  Maine  a  correspon- 


jUSTICE 

dent  and  afterwards  a  member  of,  49, 

77      .  . 

Institutions,  history  of  early  Indian,  28  ; 

representative,    190,   360;  education 

of  Natives  for  municipal,  263 

Intelligibility  of  Succession  Act,  198 

Interference  for  better  order  of  Native 

States,  324 

Intermarriage  between  castes,  292 

International  Law,  18,  35,  36,  321 

,  how  it  regards  documents,  399 

Intervention  in  divorce  cases,  97 

Intestate  succession,  law  of,  232 

Intricacy  of  uncodified  Indian  law,  232, 

309 
Investments  in  India.     Sec  Guaranteed 

interest 
Irish   institutions    throw    light    on   In- 
dian, 44  ;  Irish  legislation,  284.     Sec 
Brehon  law  treatises 
Irrigation-water,  rent  of,  273 
Irrigation-works,  construction  of,  341 
Isolation  of  Small  Cause  Courts,  211 
Isolated  judicial  rulings,  312 


JACKSON,  Sir  Charles,  137,  140 
Jails,    construction  of,   123  ;    dis- 
cipline of,    124;    in  Native   States, 
401.      See  Chaplain 
Java,  260  ;  institutions  of,  428 
Jersey,  Maine's  childhood  spent  in,  2 
Jesuits'  bark,  381 
Joint  occupation  of  property,  251 
Joint-stock  Companies,  221,  329  ;  con- 
struction of  Indian  railways  by,  342  ; 
concessions  to,  343  ;  costs  of  winding 
"P,  259 
Journalism,  Maine's  interest  in,  68  ;  his 
success  in,  80.    See  Newspaper  Press 
Jowett,  Mr.,  403,  407,  408 
Judge-Advocate-General,  349 
Judicial  legislation,  drawbacks  of,  51 

—  offices,  traffic  in,  249 

—  taxation,  247-259 
Judicious  inaction,  134 

Juridical  thought,  verifiable  phenomena 

of  ancient,  39 
Jurisprudence,    '  osseous    structure   of,' 

60  ;  what  it  has  now  become,    76  ; 

examination     in,     402,     403,     405  ; 

meanings  of,  406 
Jurists,  Hindu  and   Muhammadan,  232 
Jury,  not  in  Indian  divorce  cases,  97, 

98  ;  trial  by,  184 
Jus  Gentium,  70 
Jus/a  causa,  399 
Justice,  administration  of  English,  96  ; 


INDEX 


443 


JUSTICE 

similarity  of  men  in  their  appreciation 

of,  428  ;  over-indulgence    in  luxury 

of,  430 
'Justice,  equity,  and  good  conscience,' 

200,  233,  421 
Justinian,    mancipation    abi)lishcd    by, 

59  ;  Code  of,  207,  noic 

J([AIJ  VUG  A,  theory  of  a,  163 

Kathiawar  States,  320-322 
Kent's  Conimcnlaries,  93,  note 
Keshab  Chandra  Sen,  285 
Khonds,  193 

Kindersley,  Vice-Chancellor,  214 
King,  his  relation  to  early  civil  justice, 

63.     See  Crown 
Knowledge,  genuineness  of,  34  ;  literary 

form  of,  34  ;  innovations  on,  245 
Kols,  193,  289 

LABOURDONNAIS,  17 
Lachml    Narayaii     v.      Paridb 
Singh,  395 

Lahore  University,  3S7 

Lake,  Colonel,  336,  337 

Lally,  17 

Land.  See  Allodial  land.  Beneficial 
occupancy,  Immovable  property, 
Mufassal,  Real  property,  Realty, 
Registration,  Record  of  rights, 
Tenancy,  Tenure 

Land -registries,  55,  56 

Land-revenue,  283,  356 

Land  Systems  of  British  liulia,  268, 
note 

Land-tenure,  literature  of,  417 

Language  of  older  written  law,  244 

Languages,  oral  use  of,  309  ;  '  im- 
provement '  of,  389  ;  study  of  Native, 

431 
Latham,  Dr.,  his  recollections  of  Maine, 

8 
Law,   mercantile,    t^'^,   220 ;    adjective, 

172,    241;  canon,    150,  155  ;  should 

be  atheistic,  289 

—  paralysing  administration,  234,  235 

—  complexity  of,  250 

—  of  nations,  321,  325 

—  of  nature,  what,  70 

—  of  persons,  Roman,  138  ;  codifi- 
cation of  Indian,'  195,  202.  See 
Classification,  Promulgation 

Law-libraries  in  India,  233 

'  One  branch  of  this  law  —the  law 
of  guardian  and  ward  —  has,  since 
Maine  wrote,  been  codified  by  Act  \"I1I. 
of  1890. 


I-OCAL 

Law  Quarterly  Review  cited,    27-29, 

166,  note 
Lawrence,  Lord,  23,  31,  37,  215 
Lawyers    the  natural  enemies  of  legis- 
lation, 229  ;  professional  instincts  of, 

351 

Lectures,  Maine  s,  13,  79,  Si 
Legal  conceptions,  stability  of,  60 

—  education    of    civil    servants,    308- 

—  practitioners,  influence  of,  243  : 
multiplication  of,  243.  See  License, 
Native  bar 

—  principles,  220 

—  rights  imply  a  regular  administra- 
tion of  fixed  laws,  279 

Legality,  growing  taste  for,  235 

Legislation  cannot  be  stopped,  51  ;  Ijy 
Indian  judges,  51  ;  advantage  of 
general,  90  :  of  particular,  90 ;  not 
a  good  in  itself,  118;  but  little 
originates  with  Government  of  India, 
238.  See  Drafting,  Summary  legisla- 
tion 

Legislative  Council,  proper  constitution 
of  Supreme,  366 

Legitimacy  of  children,  94 

Legitimation  per  siidseqneiis  matrinio- 
?iiii!?/,  194 

Leighton,  Maine's  birth  near,  2 

Lepchas,  193 

Letters,  Maine  not  given  to  writing,  i 

Lex  loci  Act,  286 

Liberalism,  Maine's  leaning  to,  11,  12, 
66 

Liberty,  of  transfer  and  devise,  56  ;  of 
testation  stimulates  civilisation,  199 

License  of  mufassal  advocates,  333 

Liddell,  Dean,  404 

Lieutenant  Governorships,  374 

Limitation  Act,  Indian,  416,  422 

Limited  liability,  221,  226 

Literature,  Indian  political,  33  ;  of 
Indian  revenue-settlements,  281.  See 
Writing  well 

Litigants,  taxation  of,  258 

Litigation,  owing  to  English  law  of 
succession,  25  ;  causes  of,  259  ;  a 
kind  of  gambling,  31 1  ;  nipt  in  the 
bud  by  registration,  430 

Litigiousness  of  Natives,  430 

Loans  for  special  ends,  343 

Local  funds,  356 

Local  Government  .^cts  in  England, 
264 

Local  Governments,  disobedience  of, 
355  ;  alleged  extravagance  of,  357  ; 
independence  of,  430 


444 


MEMOIR   OF   SIR    IIENRV   MAINE 


LOCAL 
Local  legislation,  234,  239  ;  revision  of, 

370 
Local  legislatures,  235,  239,  240,  363 
Local  watchfulness,  357 
Lolley's  case,  100 
London  University,  386 
Louis  Napoleon,  12 
Lowe,  Mr.  R.  (late  Lord  Sherbrooke), 

192 
Lucan,  4 

Lushington,  Dr.,  94,  103 
Lushington,  Franklin,  7 
Luther,  Martin,  155,  27 
Lyell,  Sir  Alfred,  27,  81 
Lytton,  Lord,  26 


MACAULAV,  Lord,  22  ;  his  dic- 
tum as  to  Indian  codification, 
61 ;  as  to  the  subjects  for  examina- 
tion of  candidates  for  the  Indian 
Civil  Service,  404 

Macleod,  Sir  Donald,  276 

Macleod,  Mr.  J.  M.,  192 

Madras,  Council  of,  374 

Magistrates  in  Bengal  and  Madras,  1S9 

Maine,  Dr.  James,  2 

Maine,  Sir  Henry,  his  parents,  birth, 
and  childhood, 2  ;  University  career,3  ; 
English  style,  5  ;  Latin  verses,  4,  5  ; 
tutor  at  Trinity  Hall,  6-7  ;  Regius 
Professor  of  Civil  Law,  7  ;  marriage, 
10  ;  contributes  to  periodicals,  1 1  ; 
reader  in  Roman  Law,  13  ;  his  paper 
on  Roman  Law  and  Legal  Education, 
17  ;  his  Ancient  Laiv,  20  ;  accepts 
Law  Membership,  22  ;  his  hrst  re- 
turn home,  22  ;  not  a  frondettr,  23  ; 
Acts  passed  during  his  term  of  office, 
24,  25  ;  his  debatmg  power,  25  ;  his 
speeches,  27  ;  his  minutes,  27  ;  Vice- 
Chancellor  of  the  University  of  Cal- 
cutta, 29  ;  his  Rede  Lecture,  30  ; 
his  differences  with  the  Indian  Law 
Commission,  30 ;  his  services  to 
education  in  India,  32 ;  his  help  in 
the  Executive  Council,  32,  36  ;  his 
mercantile  legislation,  t,},  ;  returns  to 
Europe,  36  ;  made  Corpus  Professor 
of  Jurisprudence,  37  ;  his  Village 
Coiiunuiiities,  36-39  ;  reviews  Hun- 
\er^s  Indian  iMiissalinans,  40  ;  gazetted 
K.C.S. I.,  41  ;  appointed  to  Council 
of  India,  41  ;  his  Early  History  of 
Institittions,    42  ;  his  Rede  Lecture, 

47  ;  elected  INIaster  of  Trinity  Hall, 

48  ;  honours   conferred  on,   48,  49  ; 
his  minute  on  codification  in   India, 


MEDALS 

49-54  ;  his  observations  on  the  in- 
fluence exerted  on  law  by  Conti- 
nental systems  of  registration,  54-60  ; 
his  lecture  on  the  King,  63  ;  his 
Dissertation';  on  Early  Law  and 
Custom,  63  ;  his  Popular  Govern- 
ment, 65  ;  his  article  on  the  Patri- 
archal Theory,  67  ;  his  reply  to  Mr. 
Codkin,  67  ;  his  paper  on  India  in 
'  The  Reign  of  Queen  Victoria,'  68  ; 
his  posthumous  lectures  on  Interna 
iional  La7i\  69  ;  his  last  illness  and 
death,  73  ;  his  widow  and  children, 
74  ;  obituary  notices  of,  74-82  ;  his 
mental  gifts,  80  ;  his  gentleness,  80  ; 
his  cautious  temperament,  81  ;  put 
the  essence  of  himself  into  his 
writings,  82  ;  his  lile  a  drama  in  five 
acts,  82  ;  his  chief  titles  to  remem- 
brance, 83 

Maine,  Mr.  Charles,  74 

Malabar,  crimes  in,  261 

Malicious  criminal  charges,  254 

Mancipation,  55,  59 

Manorial  dues,  compensation  for,  282 

Mansfield,  Lord,  222 

Mansfield,  Sir  William.  See  Sandhurst, 
Lord 

Maritime  belligerency,  71 

Market  overt,  367 

Marriage,  dissolution  of,  92  ;  does  not 
in  India  confer  interest  in  property, 
192  ;  English  law  of  property  as 
affected  by,  201  ;  civil,  285-294  ; 
penalty  on  improper,  293,  294  ; 
theory  of,  145  ;  immorality  of  infant, 
142.  See  Betrothal,  Bigamy,  Death, 
Conjugal  society.  Divorce,  Heathen 
marriage.  Intermarriage,  Presump- 
tion, Legitimation,  Nullity,  Pre- 
sumption, Prohibited  degrees.  Sole 
and  separate  use.  Succession,  Separa- 
tion 

Marriage  settlements,  195,  201,  202  ; 
under  French  codes,  204,  205  ;  prac- 
tice of  making,  207 

Massey,  Mr.  W.  N.,  31,  248 

Master  and  Servant  Bill,  54 

Materialistic  sects  of  Hindus,  162 

Mathematical  studies,  405 

Mathematics,  Maine's  honours  in,  6 

Matrimonial  jurisdiction,  91  ;  law  of 
Christians  in  India,  131 

Max  yivWo.x' •&  Sacred  Books  of  the  East ,  63 

Mayne,  Mr.  J.  D.,  400 

Mayo,  Lord,  23,  32,  430 

McLennan's  theories,  67,  293 

Medals  gained  by  Maine,  3 


INDIA' 


445 


^rI-:I,A^"CTHO\ 

Melancthon,  155 

Mental  philosophy,  examination  in,  405 
Mercantile   law,   Indian,    should  agree 
with  English,  220 

—  legislation,  Maine's,  ^^^ 

—  marine,  right  to  capture  enemy's,  71 
Merivale,  Mr.  Herman,  82 
Metcalfe,  Lord,  61 

Methods  of  great  masters,  21,  27.      SW 

Inductive  method 
Middle  Temple,  Maine's  lectures  in,  13 
Migrations  between  Calcutta  and  Simla, 

378 
Military    authority,    suit    for    improper 

exercise  of,  331 

—  justice,  administration  of,  349 

—  officers,  civil  liability  of,  327  ;  in 
civil  employment,  429 

—  trials,  350.     See  Court-martial 
Minchin,  Mr.  J.  I.,  252,  267 
Minorities  beneficial   to  Native   States, 

394 

Misrepresentation  of  Ciovernment  orders 
and  laws,  423 

Missionaries,  131,  133,  134,  136,  140 

Mistakes,  of  Courts  of  First  Instance, 
215  ;  titles  beginning  in,  275  ; 
standing  by,  better  than  perpetual 
meddling,  339 

Money,  right  to  coin,  324 

Money-lending  in  India,  274,  423 

Montesquieu,  48,  74 

Moplahs,  261 

!Moral  education,  performance  of  con- 
tract one  of  the  means  of,  91 

Moral  philosophy,  examination  in,  405 

Moral  weakness  of  inferior  Civil  Courts, 

333. 
Morality,  Native   standards  of,  85  ;  le- 
gislature guided  b)^  reasons  of,    139  ; 

creation  of  a  celibate  class  fatal  to, 

146 
J/o/re//e;/ien(  odand  in  France,  196 
Morgan,  theories  of  Mr.  L. ,  67 
Morley,  John,  his  criticism  on  Popular 

Governiiient,  74 
Morning  Chronicle,  The,  1 1 
-Mortgages,  registration  of,  55,  58 
Motive  of  criminal  act,  88,  89 
Movable  property,  devolution  of,  192 
Mufassal,    lav,-   of  immovalile  ]noperty 

in  the,  194,  329  ;  courts  in,  169 
Muhammadan,  theory  of  equality,  40  ; 

rule  of  divorce   by  conversion,    163  ; 

jurists,  vagueness  of  writings  of,  232, 

420 
Muhammadanism,     converts    to,     i6o, 

161,  289 


\OLLE 

Muir,  Sir  Wm.,  201,  336,  339 
!Munici]5al  committees,  235 

—  election,  264,  265 

—  institutions,  education  of  Natives  for, 
263 

Municipalities,  Indian,  263-267 
Murderous  outrages  in  the  Panjab,  259- 

262 
Mutiny,  the  Indian,  15 
Mutiny  Act,  334 
Mysore,  394 


NAMES,  authority  of,  123,  125 
Nasse,   his  investigations  as  to 
village  communities,  37 
iVaiion,  The,  67 

Nations.     .S't't' Comity,  Law  of  Nations 
Native  Bar,   243  ;    arguments  of,   424. 
See  Advocacy,  Technicality 

—  Christians,  133  ;  marriages  of,  149 

—  customs,  preservation  and  protec- 
tion of,  190  ;  investigations  of,  281  ; 
rigidity  given  to,  288 

—  governments,  indiscriminate  taxa- 
tion by,  338 

—  Judges,  defects  of,  424 

-    law-treatises,  vagueness  of,  244 

—  marriages,  publicity  of,  109 

—  religions,  immobility  of,  287-288  ; 
subsects  of,  287 

—  States,  desire  of  British  Government 
to  maintain,  394  ;  their  power  to  try 
British  subjects,  400  ;  rudeness  of 
their  criminal  systems,  401.  See 
Interference,  ^linorities 

Natives  of  India,  their  right  to  emi- 
grate, 120 ;  their  comparative  in- 
capacity to  associate  legal  claims 
with  moral  rights,  31 1 ;  their  tenacious 
adherence  to  certain  customs,  338  ; 
dislike  regimen  of  discretion,  418, 
419  ;  their  litigiousness,  430 

Natural  science,  examination  in,  405 

Nature,  blind  forces  of,  30 ;  Maine's 
indifference  to  external,  31  ;  law  of, 
70.      Sec  Physical  nature 

Negotiable  instruments,  stamps  on, 
299  ;  Act  codifying  law  of,  54.  See 
Ilundis 

Negroes,  successors  of,  119,  120 

Nelson,  3 

Nestorianism,  131 

Newspaper  ]iress  of  India,  227 

New  York  Code,  arrangement  of,  172, 
174 

Ninclcc'ilh  Ccniitry,  The,  67 

Nolle  prosctjiii,  179 


446 


MEMOIR   OF    SIR    HENRY    MAINE 


NON-REGULATION 

Non -regulation  provinces,  232,  242 
Norfolk  Circuit,  Maine  belonged  to,  14 
Norman,  Mr.  Justice,  92 
Northbrook,  Lord,  402-404,  407-409 
North-Western  Provinces,  local  legisla- 
ture for,  239  ;  legislation  for,  in  1867, 
240;  change  during  thirty  years  in, 
241  ;  regulations  for  wilder  parts  of, 
362 
Nuisances,  presentment  of,  183 
Nullity  of  marriage,  decrees  of,  109 
Nuncupative  wills,  251 


OCCUPANCY  rights  in  the  Panjab, 
279,  271  ;  existed  before  annex- 
ation, 273 

(/)ccupancy-ryot    a  co- proprietor,    271  ; 
advances  to,  274 
-  tenures,  mortgage  of,  274 

( )ffices,  traffic  in  judicial,  249 

Official  discretion  somewhat  fettered 
by  legislation,  246  ;  Natives  in  favour 
of  abridging,  247 

Official  duties  created  by  Indian  legisla- 
tion, 245 

Official  responsibility  necessary  to  make 
an  Englishman  work  in  India,  309 

Official  Trustees,  126 

Official  work,  influence  of  climate  on, 
378,  381,  382 

Officials,  indemnification  of,  246 

Old  age,  exaltation  of,  64 

Opinion,  history  of,  290 

Opium,  Maine  nearly  poisoned  by,  2 

Opposition  to  Government,  326 

Oral    complaints    to    criminal    courts, 

253 

—  deathbed  wills,  frauds  resulting 
from,  251 

—  testimony,  worthlessness  of,  278 

—  use  of  Native  languages,  309 
Ordeals,  46  ;  Hindu,  426 

Oriental  contempt  for  qualified  state- 
ments, 29 ;  languages,  385,  389,  390, 
432  ;  monarchs,  258  ;  procedure, 
characteristics  of,  19 1 

Orissa,  famine  in,  341,  372,  375 

Oscillations  of  Indian  agrarian  policy, 
420 

Oudh,  local  legislature  for,  239 

Outcastes,  160,  162,  163 

Over-centralisation,  68 

Over-legislation,  alleged,  227-247 

Over-ruling  councils,  procedure  in,  376 

Over-taxation,  dangers  in  India  of,  347 

Owen,  Professor,  15 

Ownership  in  bonis.  57 


PI  DO  EON 

Oxford,  10  ;   Maine's  lectures  at,  42 
Oxford  and  Cambridge  Club,  22 


PANCHAYAT,  425 

XT  Panjab,  local  legislature  for,  239 ; 
former  civil  procedure  of,  245';  regu- 
lations for  wilder  parts  of,  362.  See 
Circulars 

Paper  evidence,  213-215,  314,  315 

Paralysis  of  administration,  235,  245 

Paramount  Power,  325 

Parliamentary  smithery,  66  ;  title,  273 

Parr,  Dr.,  31 

Parsis,  their  laws  of  marriage,  divorce, 
and  succession  codified,  197  ;  their 
daughters'  shares,  209 ;  bridge  the 
gulf  between  Europeans  and  Natives, 

375 
Partial  independence,  323 
Particular    legislation,     advantages    of, 

90 
Parties  to  actions,  328 
Partners,  liability  between,  221 
Partnership,   indicia  of,   223  ;  en  com- 

/iianiiitd,  218,  226 
Palria  fotcsfas,  427 
Patriarchal  administration,  417 

—  power  of  chiefs,  361 

—  theory,  67 

Pauper  settlement,  law  of,  338 
Peace,  avenue  to  perpetual,  35 
Peacock,  Sir  Parnes,  92,  94,  317,  363, 

396,  397 
Peasant    proi^ietary    in     Madras    and 

Bombay,  375 

—  tenures  on  the  Continent,  92 
Peel,  Sir  Robert,  11 

Pembroke  College,  Cambridge,  3,  78 
Penal  Code,  Indian,  43,  note  ;  150,  167, 

177. 

Penalties,  infliction  of  severe,  87  ; 
assessment  of  civil,  88 ;  character- 
istics oi  proper,  293.    See  Punishment 

Peripatetic  governments,  383 

Perjury  in  India,  422,  426 

Permanent  settlement  of  Lower  Bengal, 

417 
Persia,  sitting  dharna  in,  43 
Persian  language,  compulsory  study  of, 

431 
Personalty,  succession  to,  195 
Personation,  109 

Phillimore  on  International  Law,  399 
Physical  nature,  facts  of,  47 
Physical    pain    should  be    inflicted    by 

punishments,  122 
Pidgeon  English,  389 


i\i)i:x 


447 


I'ilt,  William,  3 

Plato,  Maine's  poem  on,  6 

Pleaders  in  Small   Cause   Courts,  424, 

425 
Plena  lux  Loudincusis,  3 1 
Pliny's  Natural  History,  44 
Political    economy,    examinations     in, 

402,  403,  405,  406 
I'olitics,  Maine's,  11,  66,  74,  75,  77 
Pollock,  Sir  Frederick,  20,  48,  69,  76  ; 

his  draft  Code  of  the  law  of  Torts, 

61 
Polyandry,  145 
Polygamist,  marriage  not  to  revoke  will 

of,  237  ;  intestacy  of,  237 
Polygamy,    131,    145,    151  ;    rights    of, 

106 
Popular  Govcniiiiciil,  65-67 
Popular  language  of  older  written  law, 

243,  244 

—  representation,  264 

—  self-government,  264 

—  tribunals,  352 

Positive  rights,  comnnmication  of  con- 
sciousness of,  244 

Powers,  ancillary,  304 

Praetor  peregrinus,  70 

Prasanna  Kumar  Thakur,  will  of,  258 

Precedents,  thraldom  of,  51.  Sec  For- 
eign law 

Pregnant  convicts,  304 

Prejudice,  language  of,  209  ;  against 
codification,  231 

Xlpis^iis,  64 

Prescription,  57,  58 ;  free  use  of,  a 
criterion  of  civilised  law,  277 

Presentment  of  Cirand  Jury  of  Calcutta, 
180 

Press,  mis^takes  and  misrepresentations 
of  the  Indian,  369 

Presumption  that  under  Muhammadan 
law  dissolution  of  marriage  follows 
conversion,  161  ;  as  to  family  suc- 
cession, 193  ;  of  occupancy-right, 
280  ;  as  to  contracts  to  serve,  306  ; 
against  change,  414 

Prince  of  Wales,  prize   poem    on   birth 

of,  3 
Principles,  of  conduct,  71  ;  legal,  220; 

modification  of  first,  367 
Principles  of  Judicial  Procedure,   Ben- 

tham's,  cited,  249-250 
Prison-discipline,  1 24 
Prisoners,  murder  of,  70.      See  Jails. 
Private  International  Law,  92,  93 

—  property  at  sea,  72 

Privileges  of  Europeans,  121  ;  of  cove- 
nanted Civil  Service,  317 


RAJPUTANA 

Prize  poems,  3,  6 

Probate  and  Administration  Act,  199, 
note 

Professional  lawyers,  206 

Progress,  29,  66  ;  connected  with  free- 
dom of  contract,  90  ;  unequal  rate  of, 
239  . 

Prohibited  degrees,  292,  293 

Promulgation  of  laws,  129 

Property.  See  Capture  at  sea.  Indi- 
vidual property.  Joint  occupation. 
Marriage,  Tenant-right 

Proprietary  rights,  forms  of,  282  ;  in 
land,  337 

Prosperity  following  annexation,  284 

Protection,  Mr.  Disraeli's  belief  in, 
11-12 

Protector  of  emigrants,  115,  116 

Provincial  finance,  414 

Public  deljates,  364,  369 

—  debt,  414 

—  gambling,  235 

—  law  of  nations,  18 

—  opinion,  369 

—  policy,  305 

—  transfer  of  immovable  property,  52 

—  works,  341  ;  borrowing  for,  344  ; 
control  of,  377 

Publicity  of  divorce  cases,  96 

—  wholesome  check  of,  183 

Pundits,  opinions  of,  162 

Punishment,  disgraceful,  122  ;  senti- 
mental theory  of,  123.  .S'tV  Penalties, 
Physical  jiain.  Reformatory  punish- 
ment. Whipping 


QUARTERLY  REVIEW,    65,67 

^  ^z/(z.f/-international  law  applicable 
to  India,  39S 

Quesnay,  76 

Questions,  power  of  answering  intelli- 
gently, 278 

Questions  of  fact,  46  ;  Small  Cause 
Courts  are  for  solution  of,  213  ; 
appeals  on,  314,  315  ;  finality  of 
decisions  on,  316,  317 

—  of  law,  47 


RACK    REXT,  tenancy  at  a,  272 
Radical     remedies,     inconveni- 
ences of,  317 
Radicalism,  meaning  of,  75 
Railway    passengers,    ill-treatment    of 

Native,  344 
Railways,  construction  of  Indian,  341 
Kajputana.     See  Clans 


448 


MEMOIR    OF   SIR    HENRY    MAINE 


RANK 

Rank  cif  mortgages,  58  ;   of  educational 

officers,  326 
Readers  at  Inns  of  Court,  13 
Read  mission  to  caste,  106 
Real  property,  conveyance  of,  54 
Realty,  succession  to,  195 
Rebuttal  of  presumption  of  occupancy 

right,  281 
Record  of  rights  in  land,  283 
Recruiting  coolies,  116,  117 
Rede  lecture,  Maine's,  30,  47 
Reformatory  punishments,  123,  124 
Registrar  of  Small  Cause  Court,  211 
Registration,  an  element  of  transactions 

relating  to  land,  54,  note 

—  of  documents,  128-130  ;  nips  litiga- 
tion in  the  bud,  430 

Registration  Act,  229,  230 
Registration-department,       profits     of, 

128 
Regulations  before  1832,  232 
Reign  of  Queen  Victoria,  The,  68 
Rejection  of  written  statements,  332 
Religious  death,  134 

—  fanaticism,  offences  attributable  to, 
259-262 

—  liberty,  charter  of,  286 

-  opinions,  enactments  affecting,  229 
Re-marriage  of  native  converts,    130, 

164 
Remission  of  sentences,  301 
Remuneration  of  official  trustee,   126 
Reports  of  decisions  of  High   Courts, 

312 
Representation  by  fives,  55 
Representative  institutions,  190,  368 
Reprieves,  304 

Resuscitation  of  barbarism,  426 
Revenue-courts,  256 
Revision  of  local  legislation,  370 
Ridley,  Bishop,  3 
'  Right,'  ambiguity  of,  279 
Rights  of  conscience,  161 
Risley,  Mr.,  409 
Ritchie,  Mr.,  22,  79;  his  opinion  as  to 

Grand  Juries,  185,  186,  188 
Ritual,  idolatrous,  290 
Roman  Catholic  Church,  its  doctrine  as 

to  the  divorce  of  a  convert  repudiated 

by  his  heathen  wife,  155 
Roman  Catholics  in   India,    138,    141, 

146 
Roman  law  a  key  to  international  law, 

18,  19  ;  importance  of  knowledge  of, 

39 
Romilly,  Lord,  192 
Rousseau,  65 
Routine,  inveteracy  of,  214 


SECRETARY 

Royal  Institution,  Maine's  lecture  in 
the,  63 

—  Irish  Academy,  Maine  an  honorary 
member  of  the,  49 

—  vSociety,  Maine  a  Fellow  of  the,  49 

—  Succession,  63 

Rules  consistent  with  Acts,  power  to 
make,  246 

—  made  for  Non-Regulation  Provinces, 
242.  See  Alteration,  Ambiguity, 
Good  government 

Russia,  283 

Russian   translation    of    Village     Coin- 

munities,  TJ 
Ryan,  Sir  E.,  192 
Ryots,    improvidence     cf,     307.        See 

Dekkhan  Ryots  Act 


C  ACRED  I'ooks  of  the  east,  63 

Sacred  literature,  critical  sifting  of, 
390^ 

Sadr  Court,  420 

St.  James's  Gazette,  The,  cited,  75 

.St.  Leonards,  Lord,  230 

St.  Paul  cited,  137,  138 

Salic  law,  63 

Salisbury,  Lord,  15,  412 

Salt-duties,  reduction  of,  359 

Sanad,  cessions  by, 395-400  ;  not  neces- 
sarily unilateral,  398 

Sanction  of  international  law,  71 

Sandars,  Mr.  T.  C,  15 

Sandhurst,  Lord,  327,  341,  350,  355 

Santhals,  289 

Saturday  Revieia,  The,  14,  i5)  20; 
cited,  79-82 

.Savigny,  21 

Savings  of  non -commercial  classes, 
226 

Sayyid  Ahmad,  Sir,  supports  codifica- 
tion of  Indian  law,  61 

Schlagintweit,  E. ,  die  Gottestirteilc  der 
Indier,  426,  note 

Scholarships,  408 

Science,  teaching  of  true,  34  ;  of  law, 
impulse  given  by  Maine  to,  76 

Scientific  thought  in  democratic  socie- 
ties, 67 

Scotland,  Sir  Colley,  his  opinion  as  to 
Grand  Juries,  185 

Scotsman,  The,  20 

Scottish  divorces,  103  ;  Presbyterian 
church,  156  ;  law,  195  ;  universities, 
386 

Search  for  incumbrances,  130 

Seat  of  Government,  371 

Secretary  of  State  for  India  in  Council 


INDEX 


449 


SECULAR 

bound    by   disclaimer   of    Court    of 
Directors,  322 

Secular  power,  Indian  legislation  repre- 
sents the,  139 
Select  Committees,  25 
Self-interrogation,  279 
Senchas  Mor,  42,  44 
Senior  classic,  6 
Sentences,  suspension  and  remission  of, 

301-305 
Sentiment,  law-abiding,  71 
Sentimental  theory  of  punishment,  123 
Separation  without  divorce  a  vinculo, 

no 
Servitude  in  Oudh,  305 
Seton-Karr,  Mr.  W.  S.,  202 
Settlement-officers  of  the  Panjab,  245, 

268,  269 
Settlements.    See  Marriage  settlements 
Shakespeare,    his    pages    loaded    with 

thought,  5  ;  his  'Twelfth  Night,'  13 
Shame,   value  of  punishment    rousing 

sense  of,  122 
Shaza  v.  Gould,  10 1,  102 
Shaw-Stewart,   Mr.    M.  J.,   252,   263, 

265,  267 
Shepherd  of  Hernias  z\\.&<\,  136,  137 
Sikh  Government,  276,  279  ;  property 

under,  337,  340  ;  Sikh  religion,  287  ; 

marriages,  287 
Simla  an  alternative  capital,  378 
Simplicity  of  Succession  Act,  198,  204 
Simplification  of  legislative  machinery, 

246 ;    of    European   laws,    249 ;    of 

Native  laws  and  institutions,  250 
Sinecures,  249 
Sinking  funds,  343 
Slave,  agreement  to  be  a,  305 
Slavery,    a   humanitarian    reform,   70  ; 

wifehood  and,  209 
Small  Cause  Courts,  209,  217,  31 1-320, 

424.     See  Circuits 
Smith,  Mr.  Bosworth,  his  Life  of  Lord 

Lawrence,  23 
Smith,  Dr.  George,  227,  note 
Smith,  Mr.  Goldwin,  15 
Society,   Maine's  indifference    to,    31  ; 

phenomena  of,  38  ;  interest  of,  89 
Sole  and  separate  use,  203 
Sovereign,  reluctance  to  interfere  with 

personal  acts  of,  119 
Sovereignty,   a  question  of  fact,    321, 

322  ;  rights  forming,  322  ;  divisibility 

of,  322  ;  disclaimer  of,  322 
Spartan  senate,  64 
Special  appeals,  216,  314 
Specific  performance  of  contracts,  164- 

178;  French,    German,    and    Dutch 


SUMNER 

laws  of,  166  ;  of  small  contracts,  1 76 ; 

English  restrictions  of  right  to,  178. 

Sec  Austin 
Specific  Relief  Act,  108  note,  174  note 
Spectator,  The,  cited,  75 
Speculation,  litigation  a  form  of,  62  ; 

stimulation  of  spirit  of,  226 
Speech,  faculty  of,  64 
Spenser,  3 
Spiritual  adultery,  heathenism  is,  136 

i^piti,  193 

Stability  of  legal  conceptions,   60  ;    of 

property,  284 
Stale  demands,  422 
Stamps'  on    applications    to    Criminal 

Courts,  248,  253  ;  on  negotiable  in- 
struments, 299 
Standard  of  industry  in  India,   82  ;  of 

good  government,  242 
Standing  camps,  383 
Star  Chamber,  183 
State  papers,  English,  19 
State  sovereignty,  71 
Statement    of  cases    by    Small    Cause 

Court  Judges,  217 
Status   of  aged    men,  63  ;  of  women, 

63  ;   determined  by  law  of  domicile, 

92 
Stephen,  Sir  J.  F.,  15,  23,  48,  50,  74, 

300 
Sfipulatio,  origin  of,  21 
Stoic  doctrine,  70 
Stokes,  Mr.   Whitley,  25,   42,  50,  91, 

251 
Strabo,  his  account  of  the  Druids,  44 
Strachey,  General,  344,  345,  354,  356 

—  Sir  John,  33,  74,  271,  359 
Straits  Settlement,  227,  228 
Studentships  at  Inns  of  Court,  13 
Study,  object  of,  34 

Style,  masters  of  English,   5  ;  Maine's, 

13 

Sub-sects  of  Native  religions,  287 
Substantive  law,  province  of  Code  of, 
172  ;  gaps  and  interspaces  in,  244  : 
whether  specific  performance  a  branch 
of,  171-175 
Succession  of  children  of  marriage  con- 
tracted in  good  faith  but  declared  to 
be  null,  109 

—  ,law  of,  192-209;  among  quasi- 
sovereign  Hindu  princes,  392  ;  liti- 
gation caused  l^y  English,  25 

Succession  Act,  Indian,  102,  198 
Suicide  to  enforce  demands,  43 
Summary  legislation,  368 
Sumner,     Archbishop,     Maine's     god- 
father, 2 

G  G 


450 


MEMOIR   OF   SIR    HENRV   MAINE 


SUPERINTENDENCE 

Superintendence  exercised  by  appellate 

courts,  313 
Supervision    of    Small   Cause    Courts, 

217  ;  of  Courts  of  First  Instance,  320 
Supreme  Courts,  jurisdiction  of,    419, 

420  ;  abolition  of,  420 
Suspension  of  sentences,  301,  304 
Swiss   cantons,    their   relation    to    the 

Federal  Power,  323 
Switzerland,  323.     See  Swiss  cantons, 

Zurich. 
Sylhet,  Europeans  in,  190 


J^AGOREw  Tagorc,  258 

Talabana,  332 
Taluqdari  tenures  of  Oudh,  275 
Taxation,    increase    and  reduction    of, 

359 
Taxes  on  justice,  255,  256 
Taxing  Acts,  238 
Taylor,  Mr.  Tom,  10 
Teaching  bodies,  386 
Techni  a,l  language  of  Indian   officials, 

39    .      . 
Technicality  of  uncodified    Indian  law, 

309  ;  Native  lawyers'  love  of,  424 
Teignmouth,  Lord,  43 
Temple,  Sir  Richard,  275,  277 
Tenancy,  of  land  in  the   Panjab,   268- 

285  ;  at  will,  272 
Tenant  right,  a  form  of  property,  270 
Tenure  of  land,  custom  regulating,  338. 

See  Villeinage 
Territorial  right  of  sovereignty,  71 
Testamentary    disposition,     acquisition 

of  power  of,    199.       See   Adoption, 

Wills 
Text-books,   English    legal,  296,    297, 

421 
Theology,  Indian  legislature    does  not 

affirm  propositions  of,  135 
Theoretical  perfection,  198 
Theories  epidemic  in  India,  28  ;  about 

a    law    and    state   of  nature,   65  ;  of 

Messrs.     McLennan    and     Morgan, 

67  ;    of  missionaries  as  to  marriages, 

133  ;  extreme,  259.     See  Patriarchal 

theory 
Thring,  Lord,   25  ;  his   Manual  of  the 

Customs  of  War,  72 
Tibetans,  193 
'J'iers  it  at,  45 

Title,    documents   affecting,     130  ;    be- 
ginning in  violence,  275 
Torts,  codification  of  the  law  of,  50,  51 
— ■  Sir  Frederick   Pollock's  draft  code, 

61 


VENICE 

Torture  in  India,  426 

Toryism,  ideal,  74 

Tradition,    mancipation  succeeded  by, 

55.  59 
Transfer,  Roman  law  of,  59 
Transfer  of  Property  Bill,  51,  52,  54 
Translations  of  Maine's  works,  77 
Travancore,  400,  401 
Treaty   not   necessary   for    cession    in 

India,  398  ;  form  of,  399 
Trevelyan,  Sir  Charles,  121,  122,  341 
Trial  liy  jury,  190 
Trinity    Hall,    Maine    tutor    of,  6,   7  ; 

master  of,  48  ;  Maine's  portrait  at,  74 
Trivium  and  quadrivium,  404 
Trustee  Acts,  230 
Trustees,   remuneration  of,    127.       See 

Official  trustees 
Trusts,  objects  of  private,  126 
Trusts  Act,  54 
Truth,  aids  to  discovery  of,  183 

—  of  facts,  measure  of,  314 
Turgot,  76 

Turner,  Lord  Justice,  230 

—  vSir  Charles,  50 
Tyranny,  pretexts  for,  89 


UNANIMITY,  rule  of,  184 
Uncertainty  of  uncodified  In- 
dian law,  232 

Undivided  family,  35 

Uniformity,  aimed  at  by  Indian  codes, 
61  ;  of  habit,  214 

Union,  the  Cambridge,  26 

United  States,  Constitution  of  the,  66  ; 
their  refusal  to  adhere  to  the  Decla- 
ration of  Paris,  71  ;  Federal  autho- 
rity in  the,  323.      See  America 

Universities,  384  ;  English,  386 

University,  meaning  of,  385,  386  ;  ot 
Calcutta,  29  ;  of  France,  387 

—  men  preferable  for  Educational 
Department,  327 

Unlearned  tribunals,  decisions  of,  330 

Unsustainable  charges,  entries  on,  179 

Urgency  with  which  Local  Govern- 
ments demand  legislation,  241 

Usage.     See  Custom 

Usucapion,  57,  58 


VAGUENESS      of     Native     law- 
treatises,  244 
Vatican  Fragments,  207,  note 
Vattel,  70 

Venables,  Mr  George,  15 
Venice,  17 


INDEX 


451 


VKRiriABLE 

\'eiifial)Ie  plicnomena  of  ancient  usage 

and  juridical  thougiit,  39 
Vernacular  languages,   study  of,    309  ; 

of  the  Panjab,  389 

—  texl-books,  3S5 

Vested  rights  created  by  {"lOvernment, 
282 

Vexatious  litigation,  334 

Vice-Chancellor  of  Calcutta  University, 
29 

Viceregal  Durbars,  distinctions  ac- 
corded at,  392 

Village  communities,  35,  47,  425 ; 
Maine's  work  on.  jj,  38,  77.  St'e 
Von  Maurer 

—  public  consent  of,  to  sale  of  land,  55 
Villeinage,  tenure  of,  57 

Violence,  title  beginning  in,  275 

Voluntary  registration,  129 

Von    Maurer,    his  investigations  as  to 

village  communities,  37 
Vyava/tdra  Mayiikha,  426,  note 


WAHABI  m.ovement,  40 
Walrond,  Mr.  T.,  his  Life  of 
Lord  Elgm,  23 

War,  extinguishment  of,  69,  70  ;  conse- 
quences of,  397.  See  Arbitration, 
Blockade,  Maritime  belligerency 

Ward,  Mr.  Humphry,  68 

Warranty,  expedient  of,  57 

IVarreiider  v.   War  render,  100 

Washington,  Anthropological  Society 
of,  49 

Waugh  V.  Carver,  218 

Wealth,  individualism  stimulated  by 
growth  of,  59 


ZURICH 

West,  Sir  Raymond,  50 

Wcstbury,  Lord,  168 

Westminster  Abbey,  medallion  of 
Maine  in,  74 

Westminster  Confession,  the,  156 

Wheaton,  399 

Whevvell,  35  ;  Whewell  Professorship  of 
International  Law,  68 

Whipping,  1 20- 1 26,  deterrent  nature 
of,  123 

Widows.     See  Dower,  Hindu  widows 

Wife,  her  equity  to  a  settlement,  195  ; 
her  personal  earnings,  204.  See 
Anticipation,  Divorce,  Separation 

Wifehood,  Native  view  of,  209 

Willes,  Sir  J.  S.,  192,  331 

Wills,  practice  of  making,  207  ;  for- 
malities of  executing,  25 1  ;  nuncupa- 
tive, 251  ;  construction  of  doubtful, 
258,  329.      Sec  Polygamist 

'  Wisdom  of  Parliament,"  113 

Withdrawal  of  capital  without  dimin- 
ishing credit,  225 

Women.  See  Commissions,  Concubin- 
age, Dower,  Female  education, 
Hindu  widows,  Husband  and  wife. 
Infant  marriages,  Pregnant  convicts, 
Wife,  Wifehood,  Zenanas 

Wood,  Sir  Charles,  22 

Writing  well,  secret  of,  17 

Written  statements,  332 


Zenana's,  203 
Zila  (District)  Judges,  217  ;    defi- 
ciencies of,  308 
Ziirich,  land  registry  of  canton  of,  56 


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